Citation Nr: 21073019 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-38 951 DATE: December 7, 2021 ORDER Service connection for obstructive sleep apnea, as secondary to the service-connected unspecified anxiety disorder, is granted. FINDING OF FACT The Veteran's obstructive sleep apnea is proximately due to his service-connected unspecified anxiety disorder. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, as secondary to the service-connected unspecified anxiety disorder, have 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 in the Air National Guard and had periods of active duty from December 2001 to July 2002, May 2005 to October 2005, June 2007 to September 2007 and December 2007 to July 2010. In November 2018, January 2020 and May 2021, the Board remanded the appeal to obtain further medical opinions. Service ConnectionObstructive Sleep Apnea Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease or injury, will be service connected. 38 C.F.R. § 3.310(b). Thus, service connection is permitted not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. Initially, the Board notes that the Veteran was found to have obstructive sleep apnea on a June 2014 polysomnogram, or sleep study. The question in this case is whether his obstructive sleep apnea is related to active service or service-connected disabilities, to include anxiety disorder. Regrettably, the medical opinions obtained from the most recent remand are inadequate. As such, the Board will once again review the medical evidence of record, including the prior opinions. A May 2014 private treatment record reflects the Veteran's report of having sleep problems with daytime somnolence and snoring and apneic episodes as noted by his wife. He also reported weight gain related to anxiety, that he was taking Paxil which prevented him from losing weight, and that he had taken Cymbalta which also caused weight gain. The physician recommended a polysomnogram which revealed obstructive sleep apnea. The physician also started Buspirone. An October 2014 VA examination report reflects the examiner's observation that the etiology of the Veteran's obstructive sleep apnea is related to the obstruction in his upper airways due to adipose tissue which correlates to the weight gain that has progressed as documented on the periodic Air National Guard physicals. Also, a May 2016 VA mental disorders examination revealed that the Veteran's anxiety disorder has been manifested by depressed mood and anxiety for which he had been prescribed Propranolol, Valium and Paxil. In a March 2020 medical opinion, a VA examiner stated that the causes of obesity are multifactorial, that people eat more due to stress or anxiety, and that some medications such as antidepressants, antipsychotics and beta blockers can lead to weight gain. The examiner concluded that it is unlikely that the Veteran's service-connected disabilities caused him to become obese and that it is possible he would have developed sleep apnea even without obesity as there is no objective evidence to confirm that obesity was a substantial factor in his obstructive sleep apnea. At a July 2021 VA examination, the Veteran indicated that his obstructive sleep apnea began during the summer of 2007 while in Iraq and that he noted fatigue and gasping for air on discharge. He reported that those symptoms continued since that time and that he was eventually diagnosed with obstructive sleep apnea. In a separate medical opinion, the examiner stated that the best documented risk factor for obstructive sleep apnea is obesity, the causes of which are multifactorial. The examiner concluded that it is unlikely that the Veteran's service-connected disabilities caused him to become obese and that it is possible that he would have developed sleep apnea even without obesity as there is no objective evidence to confirm that his obesity was a substantial factor in his obstructive sleep apnea. Given the above, while the Veteran was not diagnosed with obstructive sleep apnea until the June 2014 sleep study, the evidence suggests that he had symptoms during his period of active service from June 2007 to September 2007, and certainly by the time he reported them in May 2014. In that regard, a lay person is competent to give evidence about observable symptoms such as fatigue, snoring and irregular breathing. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board observes that a sleep study is needed to diagnose the disorder. Moreover, all VA examiners have opined that the Veteran's obstructive sleep apnea did not begin during active service and is not otherwise related to service. Thus, service connection on a direct service incurrence basis is not warranted. However, as noted by VA examiners, the Veteran gained about 50 pounds between the start of his first period of active service in December 2001 and the end of his last period of active service in July 2010. The Board observes that Paxil is an antidepressant and that Propranolol is a beta blocker. The March 2020 VA examiner noted those classes of drugs can cause weight gain. That VA examiner also noted that the underlying anxiety disorder itself can cause weight gain. The Board acknowledges that VA examiners have opined that the Veteran's service-connected disabilities did not cause his obesity. However, the Board is unable to find that the Veteran's anxiety disorder, and medications to treat it, did not contribute to some extent toward his weight gain and eventual obesity, which every VA examiner has indicated is the major risk factor for obstructive sleep apnea. A precedential opinion of VA's General Counsel, VAOPGCPREC 1-2017, explains that obesity may not be service-connected in and of itself but may be 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). In such cases, the question is whether the service-connected disability causes a veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability. In this case, while the Board appreciates the VA examiners' opinions, when considering the totality of the evidence, all of the above questions can be answered in the Veteran's favor. In light of the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that his obstructive sleep apnea is proximately due to his service-connected unspecified anxiety disorder. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for obstructive sleep apnea, as secondary to the service-connected unspecified anxiety disorder, is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.