Citation Nr: 21075386 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-31 171 DATE: December 20, 2021 ORDER Entitlement to service connection for sleep apnea, secondary to service-connected posttraumatic stress disorder (PTSD) on a causation basis, with obesity as an intermediate step, is granted. FINDING OF FACT The Veteran's sleep apnea is caused by his obesity, which was caused by his service-connected PTSD, and sleep apnea would not have occurred but for obesity caused by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea, secondary to service-connected diabetes, with obesity as an "intermediate step" are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310; VAOPGCPREC 1-2017 (Jan. 6, 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to November 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claim of service connection for sleep apnea. In June 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board remanded the matter in August 2018, January 2021, and August 2021 for further development. As the Board is granting the claim of service connection in full, discussion of compliance with the Board's August 2021 remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is secondary to his service-connected PTSD, with the intermediate step of obesity. The issue of entitlement to service connection for sleep apnea on a direct basis has not been raised by the Veteran, his representative, or reasonably raised by the evidence of record. Therefore, the Board need not address this theory of entitlement. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3 .310(a), (b). In March 2019, a VA examiner noted the Veteran was diagnosed with sleep apnea in 2008. Thus, the Veteran meets the current disability requirement. In a March 2019 VA opinion, the VA examiner found that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of PTSD. The examiner reasoned that there was no medical documentation supporting the claim that PTSD caused sleep apnea, and that sleep apnea is due to a physical obstruction in the airway. In an August 2019 VA addendum opinion, a VA physician indicated that sleep apnea is characterized by recurrent obstruction of the pharyngeal airway during sleep, with resultant hypoxia, and sleep fragmentation. The pathogenesis of sleep apnea, while not completely understood, is likely due to the interaction between unfavorable anatomic upper airway (UA) susceptibility and sleep-related changes in UA function. Obesity is a major risk factor for sleep apnea through multiple mechanisms, including decreased lung volume, increased soft tissue volume, and potential impairment of the mechanical output of UA muscles. It was the VA physician's opinion that the Veteran's sleep apnea was more likely due to upper airway anatomy and obesity, not PTSD. PTSD may cause problems with falling and staying asleep, but the hypoxia seen in sleep apnea is not due to PTSD. In a February 2020 VA addendum opinion, a VA physician reiterated his March 2019 opinion that the Veteran's sleep apnea was less likely than not caused by his service-connected PTSD. He reasoned that sleep apnea was caused by physical obstruction in the airway. Furthermore, review of the Veteran's medical records documented that he was able to sleep through the night with occasional nightmares. During a March 2020 VA PTSD examination, the Veteran reported that he mostly sleeps during the day. In an April 2020 VA addendum opinion, a VA physician found it was less likely than not that the Veteran's sleep apnea was aggravated by his service-connected PTSD. The physician reasoned that the Veteran's mental health notes stated that he was able to sleep through the night and was compliant with his CPAP. In addition, the Veteran was not on any sleep medications or medications for PTSD. In April 2021, a VA nurse practitioner reasoned that sleep apnea is a disorder that is characterized by obstructive apneas, hypopneas, and/or respiratory effort-related arousals caused by repetitive collapse of the upper airway during sleep. Several clinical risk factors are associated with sleep apnea and include the following: older age, male gender, obesity, and craniofacial and upper airway abnormalities. Moreover, longitudinal studies of sleep apnea and PTSD were needed to further understand the interplay between the two disorders and trajectories of clinical interventions. Based on the above evidence and literature reviews, the nurse practitioner found that the Veteran's sleep apnea was not caused by his service-connected PTSD. In June 2021, a VA physician noted that medical literature does not support a mental health condition as causative or the potential for aggravation of the physiologic condition of sleep apnea, which is due to upper airway soft tissue abnormalities/obesity. While some studies have suggested an association between sleep apnea and mental health conditions, they are cohort studies and do not show causality. Definite risk factors for sleep apnea include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Obesity is the best documented risk factor for sleep apnea. The prevalence of sleep apnea progressively increases as the BMI and associated markers (neck circumference, waist-to-hip ratio) increase. In September 2021, a VA nurse practitioner found that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by the service-connected PTSD. A review of the medical literature from 2014 that explored the possible relationships between PTSD and sleep disordered breathing (SDB), such as obstructive sleep apnea, found that no conclusions could be drawn from the data currently available on the potential relationship between SDB and PTSD. An additional review of medical literature from February 2015 also found an association, though inconsistent, between PTSD and SBD without clarity as to whether sleep apnea predisposes to PTSD or the other way around. In regard to the articles submitted by the Veteran, they also do not support a causal relationship between PTSD and sleep apnea. Because of the lack of scientific evidence supporting a causal role for PTSD in the development of sleep apnea, the physician found it is less likely than not that the Veteran's sleep apnea was due to his PTSD. In an October 2021 letter, the Veteran's attorney stated that the Veteran's obesity was caused by his service-connected PTSD, which caused him to develop sleep apnea. The attorney argued that the Veteran has a service-connected disability, namely PTSD, that has been proven to be a causation of factors, such as poor dietary habits and a sedentary lifestyle, that ultimately are the causation for obesity. He referenced medical literature indicating that PTSD is associated with a host of physiologic changes affecting the central and peripheral nervous systems, including neuroendocrine, serotonergic, and autonomic nervous system dysregulation. As the central nervous system plays a key role in appetite regulation, it is plausible that PTSD may be associated with subsequent weight gain. The Veteran's attorney also referenced medical research that showed that PTSD caused poor eating habits and reduced physical activity, thereby increasing obesity by excessive calories in versus calories burnt. In this case, the Veteran's service-connected PTSD resulted in a body mass index (BMI) of 33, which is considered obese. In November 2021, a VA nurse practitioner noted that sleep apnea is a common multifactorial condition that is prevalent in patients with multiple comorbidities. As noted by the Centers for Disease Control (CDC), "Obesity is a complex health issue resulting from a combination of causes and individual factors such as behavior and genetics. Behaviors can include physical activity, inactivity, dietary patterns, medication use, and other exposures. Additional contributing factors include the food and physical activity environment, education and skills, and food marketing and promotion." While inactivity contributes to weight gain, research has shown caloric intake is a bigger factor in obesity. In this case, there was no indication that the claimant's PTSD caused excess intake of calories or physical inactivity as the claimant maintained gainful physical employment until his retirement in February 2015. In addition, a recent review of medical literature reported that there is a hypothesis that PTSD is associated with obesity. However, this does not prove a causal relationship. Thus, the Veteran's obesity was less likely than not an intermediate step between his PTSD and a sleep apnea. Common causes and risk factors for developing sleep apnea are excess weight, neck circumference, a narrowed airway, being male, older, family history, use of alcohol, sedatives or tranquilizers, smoking and nasal congestion. Generally, these symptoms develop over years and progress in association with increases in weight, aging, or transition to menopause. The Board points out that although obesity is not a disability for VA compensation purposes, obesity may act as 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). VAOPGCPREC 1-2017; Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (affirming the Board's decision that service connection is not warranted for obesity as it is not in and of itself a disability for VA purposes, but not addressing VAOPGCPREC 1-2017). In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disability must have caused the veteran to become obese; (2) the obesity as a result of the service-connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability. Id. As discussed below, each of the above elements has been met in this case. For the following reasons, entitlement to service connection for sleep apnea, secondary to service-connected PTSD on a causation basis, with obesity as an intermediate step, is warranted. The evidence is at least evenly balanced regarding whether the Veteran's service-connected PTSD caused the Veteran's obesity. Notably, none of the VA opinions, other than the November 2021 VA practitioner's opinion, addressed whether the Veteran's PTSD caused the Veteran's obesity, and are therefore inadequate. In the November 2021 VA opinion, the VA nurse practitioner found that while inactivity contributes to weight gain, research has shown caloric intake is a bigger factor in obesity. She noted that there was no indication that the claimant's PTSD caused excess intake of calories or physical inactivity as the claimant maintained gainful physical employment until his retirement in February 2015. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). However, the Veteran reported during a March 2020 VA PTSD examination that he mostly sleeps during the day, and the Board finds this report competent and credible. In addition, the Veteran's attorney submitted medical literature finding that PTSD caused poor eating habits and reduced physical activity, thereby increasing obesity by excessive calories in versus calories burnt. Thus, the evidence of record, to include the November 2021 VA opinion, Veteran's lay statements and submitted medical literature, is at least evenly balanced as to whether the Veteran's PTSD symptoms caused his obesity. Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical article and treatise evidence may suffice to establish nexus in instances where "standing alone, [it] 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); 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). Moreover, the evidence is at least evenly balanced that the Veteran's obesity caused by PTSD is a substantial factor in causing his sleep apnea, and that the Veteran's sleep apnea would not have occurred but for the obesity caused by the service-connected PTSD. Specifically, the April, June, and November 2021 VA opinions all noted that obesity is a substantial factor in causing sleep apnea and one common cause and risk factor for developing sleep apnea is excess weight. 38 C.F.R. § 3.102. Furthermore, the August 2019 VA opinion found that the Veteran's sleep apnea was more likely due to upper airway anatomy and obesity, not PTSD. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's service-connected PTSD caused the Veteran to become obese; the obesity as a result of the service-connected PTSD was a substantial factor in causing the sleep apnea; and the sleep apnea would not have occurred but for obesity caused by the service-connected PTSD. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea, secondary to service-connected PTSD on a causation basis, with obesity as an intermediate step, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.