Citation Nr: 21073602 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 19-28 244 DATE: December 9, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's service-connected chronic left ankle sprain caused his sleep apnea, with obesity as an intermediate step. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from June 1979 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Board issued a decision in March 2020 denying the Veteran's claim for entitlement to service connection for sleep apnea. Subsequently, the Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). The Veteran and VA filed a Joint Motion for Remand (JMR) arguing that vacatur of the March 2020 denial was appropriate because the Board failed to provide an adequate statement of reasons or bases for its decision by failing to discuss all the relevant evidence of record and the issues material to the adjudication of the claim on appeal. The Court granted the JMR in a January 2021 order and has now returned the appeal to the Board. 1. Entitlement to service connection for sleep apnea is granted. The Veteran contends that his service-connected conditions, including his chronic left ankle sprain and major depressive disorder, have caused and/or aggravated his current sleep apnea such that service connection is warranted on a secondary basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). 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 notes that particularities of body type, such as being overweight or underweight, do not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service "event" for the purposes of establishing service connection. Furthermore, the opinion 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 these criteria, 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 only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In connection with his claim, the Veteran submitted a lay statement from a family member, R. C., which indicated that he had personally observed the Veteran during his military service "snoring very loudly" and "having periods where he would stop breathing." See March 26, 2018 buddy / lay statement. After the Board's original denial based on a lack of nexus, the Veteran submitted an independent medical evaluation (IME) by Dr. D. B., completed in October 2021. Dr. D. B. is a double board-certified physician in otolaryngology since 2002 and sleep medicine since 2008. His areas of expertise include the evaluation and management of obstructive sleep apnea, both surgical and non-surgical. Dr. D. B. stated that he reviewed the Veteran's claims file in its entirety prior to the IME and conducted a phone interview with the Veteran. The IME began with the Veteran's medical history, which recounted that his November 1978 enlistment examination reflected he weighed 185 pounds upon enlistment, with a body mass index (BMI) of 24.4 (which equates to normal weight). Following his separation from service, in October 2006, his BMI was 34 (which is considered obese). The Veteran has been service connected for his chronic left ankle sprain disability since April 2006. Dr. D. B. noted in the medical history section of his IME that beginning as early as 2007, the Veteran reported that as a result of his left ankle pain, he had difficulty with prolonged walking, standing, instability, swelling, and daily flare-ups which required him to "slow down" and modify his physical activities. See e.g., July 2007 VA examination. As early as 2008, VA treatment records reflected that the Veteran weighed approximately 240 pounds with a BMI over 30. In September 2009, the Veteran underwent a sleep study, which resulted in a formal diagnosis of sleep apnea and recommended treatment of a CPAP machine and weight loss. Dr. D. B. also referenced a signed statement from the Veteran dated August 2021, wherein the Veteran reported that prior to his ankle injury, "I was in very good shape and spent a lot of my time exercising and being active. Immediately after my injury, my left ankle began immediately impacting my ability to exercise. I was always worried about reinjuring my ankle or causing even more pain, so I started taking it easy after this... Eventually, it got to the point that I just totally stopped attempting exercise altogether, which led to me gaining weight." Dr. D. B. opined that "based on my review of the medical evidence, evidence provided for this case by the Veteran's own history and lay statements, peer reviewed literature, and my firsthand clinical experience, it is my opinion that it is at least as likely as not that [the Veteran's] sleep apnea is secondary to his service-connected ankle condition, by way of viewing his subsequent obesity as an intermediate step." Dr. D. B. further stated that "[c]onsistent with [the Veteran's] medical history, studies show that patients living with physical disabilities are at a greater risk for weight gain than their peers without physical disabilities due to low levels of activity... studies have also addressed the prevalence of obesity, levels of physical activity, and the health burden associated among veterans. Compared to many U.S. subpopulations, veterans have high rates of obesity. Unsurprisingly, studies show that obesity prevalence is high among veterans with three or more conditions, and especially high in veterans suffering from concomitant psychiatric conditions, such as major depressive disorder. As noted previously, obesity is causally related to the development of sleep apnea. Given [the Veteran's] history of weight gain related to his service-connected left ankle sprain and his subsequent development of obesity (which is an important risk factor for sleep apnea), it is my opinion that it is at least as likely as not that the Veteran's sleep apnea developed secondary to his service-connected chronic left ankle sprain by way of viewing his subsequent obesity as an intermediate step." Dr. D. B. also included various articles from medical journals discussing the risk of weight gain for disabled veterans and the correlation between obesity and sleep apnea. Upon review of the evidence, the Board finds that service connection for sleep apnea on a secondary basis is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of sleep apnea. Furthermore, no VA examiner has opined on the contention of service connection for sleep apnea as secondary to the Veteran's service-connected chronic left ankle sprain, with obesity as an intermediate step. However, the Board finds that the IME, private nexus opinion, and thorough supporting rationale from Dr. D. B., which cites to relevant medical evidence and applicable research to support his opinion, to be adequate and highly probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions with supporting data. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board does not find it necessary to request an addendum opinion from a VA examiner to address this contention. As mentioned above, the Board has the responsibility to determine whether the Veteran's sleep apnea is proximately due to or aggravated by obesity that was caused or aggravated by his service-connected chronic left ankle disability using a three-step test. The three-step test includes: (1) whether the service-connected left ankle disability caused the Veteran to become obese or aggravated the Veteran's obesity; (2) if so, whether the obesity or aggravation of obesity as a result of the service-connected left ankle disability was a substantial factor in causing sleep apnea; and (3) whether the sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected chronic left ankle disability. If these questions are answered in the affirmative, sleep apnea may be service connected on a secondary basis. As to the first step of the three-step test, the Board concludes that the Veteran's service-connected chronic left ankle sprain disability caused or aggravated his obesity. The evidence shows that when entering the military, the Veteran weighed around 185 pounds. Around the time of the diagnosis for sleep apnea in September 2009, the Veteran weighted around 240 pounds. An August 2007 rating decision indicates that the Veteran was granted service connection for chronic left ankle sprain effective April 2006. Further, in Dr. D. B.'s IME from October 2021, he concluded that the Veteran's chronic left ankle sprain contributed to the cessation of physical activity and exercise, which contributed to progressive weight gain leading to obesity. As for the second step, the Board concludes that the Veteran's obesity was a substantial factor in causing sleep apnea. In the October 2021 opinion, Dr. D. B. opined that research supports that the Veteran's chronic left ankle sprain caused and/or substantially contributed to the Veteran's significant and progressive weight gain, and to his eventual obesity, such that the Veteran's chronic left ankle sprain was a substantial risk factor for the Veteran's development of obstructive sleep apnea through the medium of obesity. Finally, after resolving any doubt in the Veteran's favor, the Board concludes that the Veteran's sleep apnea would not have occurred but for his obesity that was caused or aggravated by his service-connected chronic left ankle sprain. As all three questions in the three-step test have been answered in the affirmative, the Board concludes that service connection for sleep apnea on a secondary basis is warranted. Accordingly, entitlement to service connection for sleep apnea is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.