Citation Nr: 21074769 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-22 254 DATE: December 16, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as due to in-service herbicide exposure and/or as secondary to a service-connected disability, is denied. FINDING OF FACT The Veteran has a current diagnosis of OSA, but such disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service (to include the Veteran's presumed herbicide exposure), or caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA, including as due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1968 to July 1970, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in both February 2019 and August 2021, at which times the above issue was remanded for additional development. Legal Criteria Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent... unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disabilities listed in 38 C.F.R. § 3.309(e). 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). Although service connection is not allowed for obesity on its own, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The VA General Counsel has indicated that establishing service connection in a case such as the Veteran's requires resolution of three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. Id. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). 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). Analysis The Veteran seeks service connection for OSA. Specifically, he contends that his OSA was caused or chronically worsened by service-connected disabilities, including posttraumatic stress disorder (PTSD) and/or diabetes, to include weight gain as caused by such. Alternatively, the Veteran contends that his OSA was caused by his presumed exposure to herbicides during his service in the Republic of Vietnam. The Veteran's service treatment records (STRs) are negative for any indications of OSA. Post-service treatment records show that the Veteran was diagnosed with diabetes as early as May 2011 and OSA as early as June 2011. The Veteran submitted an initial claim for service connection for OSA in February 2016. In connection with this claim, he submitted a February 2016 statement from Dr. G.S., his private physician, which linked the Veteran's OSA to his service-connected diabetes. Specifically, Dr. G.S. noted that the Veteran gained at least 10 pounds between the time he was diagnosed with diabetes and the time he was diagnosed with OSA. Significantly, it was noted that the Veteran weighed 248 pounds when he was originally diagnosed with diabetes in 2011. The Veteran was afforded an initial VA sleep apnea examination in April 2016. The April 2016 VA examiner noted that the Veteran was diagnosed with OSA in 2011 after complaints of snoring and continuously feeling tired and began using a CPAP (continuous positive airway pressure) machine in December 2011. Regarding a possible connection between OSA and diabetes, the examiner concluded that it was less likely than not that the OSA was caused by the diabetes, noting that the strongest risk factor for OSA is obesity and that, at the time of his 2011 diagnosis, the Veteran was labeled as clinically morbidly obese. Thereafter, in June 2016 and April 2017, the Veteran submitted medical treatise evidence regarding the connection between OSA and diabetes. Furthermore, in February 2017 correspondence, Dr. G.S. reiterated that the Veteran's OSA was caused by obesity resulting from the Veteran's diabetes. In its February 2019 remand, the Board found that the April 2016 VA examination was inadequate and remanded the case for an additional medical opinion considering the role that herbicide exposure could play in OSA, possible aggravation by any and all service-connected disabilities, and possible secondary service-connection with any and all service-connected disabilities. Pursuant to the February 2019 remand, the Veteran was afforded a second VA sleep apnea examination in August 2020. Significantly, in October 2020, the August 2020 examiner opined that it was less likely than not that the Veteran's OSA was related to his military service on a direct basis as the Veteran's OSA was due to post-service obesity. The examiner also opined that the Veteran's OSA was less likely than not secondary to and/or aggravated by a service-connected disability. Unfortunately, the examiner failed to provide a clear rationale regarding secondary service connection or aggravation. An addendum opinion was obtained in December 2020. The December 2020 opinion discusses, in depth, the issue of weight as it relates to sleep apnea and diabetes. The examiner reiterated what all the other examiners had stated; that weight is the most common risk factor when it comes to OSA and that it would be very unlikely for the Veteran to develop OSA were he not obese. The examiner discussed the Veteran's weight which was 160 pounds in 1980. By 2010, the Veteran's weight had increased to 247 pounds. As of July 2010, the Veteran was classified as morbidly obese. The Veteran was diagnosed with diabetes in November 2011 meaning that the Veteran's obesity was not caused by his diabetes as the Veteran has contended. For further clarity, the examiner explained that medical literature does not support a finding that diabetes causes weight gain. In its August 2021 remand, the Board found that the December 2020 VA opinion was inadequate. Specifically, while the December 2020 VA examiner stated that, "while it is an accepted medical fact that OSA can worsen type 2 diabetes (DMII), it is not established that diabetes causes OSA." Significantly, however, the examiner did not discuss whether the Veteran's service-connected diabetes can worsen or aggravate his OSA. As such, the case was remanded again for an addendum medical opinion. Pursuant to the August 2021 remand, an addendum opinion was obtained in September 2021. While the September 2021 examiner was unable to determine a baseline of severity for the Veteran's OSA, the examiner still found that the Veteran's diabetes did not aggravate the Veteran's OSA. This was based on the Veteran's weight and the fact that obesity is the number one risk factor for an OSA diagnosis. Ultimately, the examiner found the Veteran's weight to be the obstructing cause. Also of record are VA and private treatment records dated through September 2021. These records show treatment for the Veteran's OSA but do not discuss the etiology of the disorder. Upon review of the above evidence, the Board finds that service connection for OSA is not warranted. Initially, the Board notes that the Veteran has a current of OSA . However, a causal relationship cannot be presumed and is not at least as likely as not. With regard to presumptive service connection, the Board notes that OSA is not a chronic condition under 38 C.F.R. § 3.309(a). Also, while the Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam, OSA is not a presumptive herbicide condition under 38 C.F.R. § 3.309(e). As such, presumptive service connection is not warranted for the Veteran's OSA. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claims are also denied on a direct basis. Significantly, as above, the Veteran's STRs are negative for OSA symptoms. Furthermore, post-service treatment records are negative for OSA until 2011, approximately 41 years after the Veteran's discharge from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no medical evidence in the record that links the Veteran's current OSA to an incident of the Veteran's active military service. As above, several VA examiners have found that the Veteran's OSA is not related to his military service and is, instead, related to the Veteran's post-service obesity. As the VA examiners offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to the opinions. See Nieves-Rodriguez v, 22 Vet. App. at 295; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, the claim is denied on a secondary basis. While the Veteran has submitted statements from Dr. G.S. relating his OSA is related to obesity caused by the Veteran's service-connected diabetes, the Board finds the VA medical opinions to be more probative with regard to this matter. As above, the December 2020 VA opinion discusses, in depth, the issue of weight as it relates to sleep apnea and diabetes, noting that the Veteran was already obese in 2011 and noting that he was diagnosed with diabetes only one month prior to his diagnosis of OSA. Furthermore, medical literature does not support a finding that diabetes causes weight gain Since the above VA medical opinions, collectively, offer clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to these opinions. See Nieves-Rodriguez v, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. While the Veteran contends that he has gained at least 15 pounds since his diabetes diagnosis in 2011, a review of the record shows that the Veteran weighed 240 pounds in 2011. As such, at the time of his diagnosis of diabetes, the Veteran was obese. Therefore, in accordance with Walsh the Veteran's obesity would not qualify as an intermediate step that could have led from the Veteran's service-connected conditions to his OSA. Also, while the Veteran has submitted medical treatise evidence showing a relationship between diabetes and OSA and medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998). However, the medical treatise evidence is not accompanied by the opinion of any medical expert linking the Veteran's OSA to active service or any incident of service, including as due to his presumed in-service exposure to an herbicide agent, however. Thus, the medical articles submitted by the Veteran are insufficient to establish the medical nexus opinion required for causation. See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine, 9 Vet. App. at 523. While the Veteran has alleged that his OSA is related to his military service, the Board finds that the question regarding the potential relationship between these disorders and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of these disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for OSA. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.