Citation Nr: 21073664 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-50 416 DATE: December 9, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, secondary to service-connected diabetes mellitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that obstructive sleep apnea was caused or aggravated by service-connected diabetes. 2. Although it is possible that obesity contributed to the Veteran's obstructive sleep apnea, the preponderance of the evidence is against a finding that the Veteran's obesity was caused or aggravated by service-connected diabetes; therefore, obesity is not an intermediate step between diabetes and obstructive sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, secondary to service-connected diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1969 to April 1971, to include service in the Republic of Vietnam. This case comes on appeal of a February 2012 rating decision. This matter was previously before the Board in June 2021. At that time, the Board remanded the claim to obtain additional development on an outstanding medical question. Entitlement to service connection for obstructive sleep apnea, secondary to service-connected diabetes mellitus Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Moreover, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected as well. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Here, the Veteran was diagnosed with sleep apnea in 1992. He does not contend that sleep apnea had an in-service onset or incurrence. Rather, the Veteran's contention is that sleep apnea was caused or aggravated by service-connected diabetes. As the Board addressed in its previous decision, the Veteran has specifically noted that, since being diagnosed with diabetes in 2004, he has been unable to control his weight from increasing. This, in turn, has caused his sleep apnea to worsen. The Veteran noted that, following his diagnosis of sleep apnea, he ultimately underwent uvulopalatopharyngoplasty (UPPP) surgery in 2002, after which he did not require the use of a CPAP machine for his sleep apnea. However, since being formally diagnosed with diabetes, and experiencing a corresponding weight gain, his sleep apnea has worsened to the point where he once again needs to use a CPAP. Although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an "intermediate step" for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). In Walsh v. Wilkie, 32 Vet. App. 300, the United States Court of Appeals for Veterans Claims (Court) held that when addressing the question of obesity as an intermediate factor, VA 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. Thus, in evaluating the Veteran's theory of entitlement, the Board must address whether the Veteran's service-connected diabetes caused or aggravated the Veteran's obesity. If so, the Board must then address whether the Veteran's sleep apnea would have occurred but for the obesity. Subsequent to filing his claim, the Veteran underwent a VA examination for sleep apnea in December 2011. There, the examiner opined that it was less likely than not that sleep apnea was caused by diabetes. By way of rationale, the examiner simply reported that sleep apnea was diagnosed in 1992 and that diabetes was not diagnosed in 2004. This examination did not address the Veteran's theory of contention regarding obesity. The Veteran then underwent a new examination in September 2016. The examiner once again opined that it was less likely than not that sleep apnea was caused or aggravated by diabetes. By way of rationale, the examiner stated that medical literature was silent as to a connection between diabetes mellitus type II and obstructive sleep apnea. Thus, even if there was documentation of a firm diagnosis of diabetes preceding the diagnosis of sleep apnea, there was no medical connection between the two. The examiner continued to state that, although many diabetes patients are obese, and there is an association noted in the medical literature between obesity and sleep apnea, the Veteran was not obese. In its June 2021 decision, the Board noted that the Veteran's medical records indicated a body mass index in the obese range. Thus, it was unclear if the September 2016 examination was based on an accurate review of the record. Furthermore, the September 2016 examiner did not address the Veteran's theory of obesity as an intermediary. Accordingly, the Board remanded for a medical opinion to address this open question. In June 2021, an examiner reviewed the Veteran's claims file and opined that it was less likely than not that the Veteran's obesity was caused or aggravated by service-connected diabetes. By way of rationale, the examiner noted that on a January 1997 Agent Orange registry examinationprior to his diabetes diagnosisthe Veteran's height was 74 inches and his weight was 262 pounds for a body mass index of 33.6. At that time, the Veteran's average weight was listed as 245 pounds, and his maximum weight was 265 pounds. The examiner noted that, since 2007, the Veteran's weight has mostly remained between 220 and 250 pounds and his body mass index has stayed stable at about 32 since 2007. Thus, based on that timeline, the examiner opined that it was clear that the Veteran's diabetes did not cause or aggravate his obesity. According to the examiner, the Veteran's obesity predated a diagnosis of diabetes, and most likely contributed to his diabetes. It did not serve as an intermediate step between his diabetes and sleep apnea. Although, the examiner clarified, it was likely that the Veteran's obesity contributed to his sleep apnea, this was not as a result of the Veteran's service-connected diabetes. Based on the foregoing, the preponderance of the evidence is against a finding that obstructive sleep apnea was caused or aggravated by diabetes, to include the consideration of obesity as an intermediate cause. Regarding whether sleep apnea was proximately caused or aggravated by diabetes, the Board finds the September 2016 examination report to be probative. Although the Board previously questioned whether the September 2016 examination report had been based on an accurate review of the record, this was specifically as it pertained to the possibility of obesity as an intermediate step. The September 2016 examiner provided an adequate rationale to explain why medical literature did not support the notion that diabetes would proximately cause or aggravate obstructive sleep apnea. Regarding the theory of obesity as an intermediate step between diabetes and obstructive sleep apnea, the June 2021 examiner's opinion is also probative. There, the examiner adequately explained why the Veteran's medical history demonstrated that his body mass index had remained relatively stable both prior to and after the onset of diabetes. Thus, there was no evidence to support the theory that diabetes had caused or aggravated the Veteran's obesity. Since diabetes did not cause or aggravate the obesity, there was no basis to consider the obesity as an intermediate step of service connection between diabetes and obstructive sleep apnea. The Board acknowledges that the Veteran's representative submitted a November 2021 brief in which the representative asserted medical treatise evidence supported a causal link between obstructive sleep apnea and diabetes mellitus, type II. The treatise, cited in the brief with a link to the study online, does not support the representative's assertion. Indeed, the medical treatise states that diabetes mellitus and obstructive sleep apnea share the common risk factor of obesity. However, the treatise does not report a finding of a causal link between diabetes and obstructive sleep apnea and, in fact, states that "[t]here is currently insufficient evidence to support the benefits of screening every diabetic patient for [obstructive sleep apnea]." Instead, the treatise advises that, due to the common risk factor of obesity, diabetic patients with symptoms suggestive of obstructive sleep apnea should be further evaluated. These findings do not in any way contradict either the September 2016 examiner's opinion that there is no medical evidence of a causal link between diabetes and obstructive sleep apnea, or the June 2021 examiner's observation that the Veteran's body mass index was not affected by diabetes. In the November 2021 brief, the Veteran's representative also argued that the June 2021 examiner's opinion should not be given probative value because the examiner did not adequately support the assertion that the Veteran's obesity likely contributed to sleep apnea. Here, the Board notes that the relationship between obesity and sleep apnea was part of the Veteran's own theory of entitlement. The purpose of the June 2021 medical opinion was to make every effort to support the Veteran's theory that obesity served as an intermediate step between diabetes and sleep apnea. The examiner's assertion that obesity contributed to the Veteran's sleep apnea, in fact, aided the Veteran's argument in that theory of entitlement. However, as the Board previously discussed, the examiner adequately explained why diabetes did not cause or aggravate the Veteran's obesity. Therefore, the preponderance of the evidence is against a finding that obstructive sleep apnea was caused or aggravated by the Veteran's diabetes, to include the theory of obesity as an intermediate factor. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.