Citation Nr: 21076269 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 13-09 575 DATE: December 22, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The Veteran's obstructive sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. § §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 2000 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). This matter was previously remanded by the Board in March 2016, October 2020 and April 2021 decisions for further development. Service Connection Entitlement to 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). 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). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Service connection for sleep apnea The Veteran contends that his current sleep apnea was caused and aggravated by his service-connected back disability. The Veteran asserts that after injuring his back, he gained weight and started having sleeping issues, which were also noticed by his spouse. He also added that while he was in service, his shipmates advised him to get a sleep study due to his snoring and gasping for air while he slept. See September 2020 Buddy Statements. The Veteran also challenged the adequacy of the January 2021 VA examination report. Pursuant to Morgan v. Wilkie, 31Vet. App.162 (2019), the matter was remanded by the Board in October 2020 for further development to determine whether the Veteran's back disability is productive of any sleep impairment, to include sleep apnea, because Morgan required VA to exhaust all schedular alternatives before considering the possibility of an extraschedular rating. Id. at 167. The Veteran's service treatment records do not contain any complaints, treatment or diagnosis for any sleep disorders. Medical records show that the Veteran was first diagnosed with sleep apnea in January 2015, approximately ten years following separation from service. See VA Medical Records. The Veteran was afforded a VA examination in January 2021 to determine the onset and etiology of the Veteran's sleep apnea. The Veteran was diagnosed as having obstructive sleep apnea with a date of diagnosis in January 2015. The Veteran reported that while in service he wanted to get tested for sleep apnea, but he was in the process of deployment and was told to wait. He finally underwent a sleep study post-service which revealed sleep apnea. He stated that his condition has improved, and he sleeps much better with a CPAP machine. The VA examiner opined that the sleep apnea is not proximately due to or the result of the service-connected back disability, and there is no objective evidence of aggravation. The examiner held that obstructive sleep apnea is a condition due to upper airway obstruction, through obesity or other anatomical means, and the Veteran was also diagnosed with morbid obesity alongside sleep apnea, with a BMI of 42.77. The VA examiner concluded that the sleep apnea is due to Veteran's obesity, a primary cause of sleep apnea, and less likely than not due to his back disability. See January 2021 VA Examination. The examiner added that Veteran's and his spouse's lay statements were reviewed; however, the examiner held that the Veteran's obesity, which he and his wife attributed to his back condition and inactivity, is likely due to excessive caloric intake and genetics. Id. The Veteran submitted a statement in February 2021 in which he asserts that during his time in service, he went through physical therapy regularly, took pain medicine and stated that he has had issues with his weight since he began experiencing the pain and it has been a problem for him managing pain medication with physical activities. He attributed his BMI increase to his sedentary lifestyle of which the primary contributing factor is his service-connected back disability. See February 2021 Correspondence. In April 2021, the Board acknowledged that VA recognizes that 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). See VAOPGCPREC-1-2017. The Veteran was afforded another VA medical opinion in September 2021 to determine the etiology of the Veteran's sleep apnea. The VA examiner held that among the multiple risk factors for obstructive sleep apnea, the Veteran's service-connected back issue is not one of them; back problems may interfere with sleep, but it is not the same as sleep apnea, nor does it produce sleep apnea. There is no medically accepted nexus between sleep apnea and back problems. As the most common risk factor for sleep apnea is obesity and Veteran was obese at the time of diagnosis, the examiner opined there is no evidence that the back disorder caused him to gain weight or that any weight gain that may have been brought about by his back problem was necessary to cause his sleep apnea. Rather, the examiner concluded there is reasonable evidence that other factors which the Veteran did have contributed substantially more to his weight gain. None of the medications listed for back pain in the Veteran's file are known for weight gain which cannot be controlled with dietary restriction. As to the Veteran's statements connecting his sedentary lifestyle with weight gain, the examiner held a sedentary lifestyle is a major cause of weight gain, in the absence of caloric restriction. There is no evidence that the Veteran's sedentary lifestyle would not have occurred if not for the service-connected back problems. The examiner concluded that it is less likely than not that the sleep apnea was caused by, related to, or aggravated beyond natural progression by Veteran's service-connected back disability. See September 2021 VA Medical Opinion. The Board acknowledges the VA examinations that provided negative nexus opinions from January 2021 and September 2021 as well as the Veteran's lay statements and his spouse's statements in support. Here, in light of the competent and credibly lay evidence, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran's favor and find that the Veteran's sleep apnea became manifest while he was on active duty. Indeed, the Veteran report of symptoms since service is competent and credible. Further, there is no doubt that the Veteran has been diagnosed as having obstructive sleep apnea. After resolving any doubt in the Veteran's favor, the Board finds that the evidence sufficiently establishes that the Veteran's current sleep apnea had its onset in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.