Citation Nr: 21076375 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-53 950 DATE: December 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (sleep apnea), to include as secondary to a service-connected disability, including any resulting obesity, is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's sleep apnea did not onset during service and is not otherwise related to service; neither is her sleep apnea proximately due to, or the result of, a service-connected disability, to include any resulting obesity. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 2006 to October 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this issue for additional development in December 2018 and June 2021. As the requested development has since been completed, the Board will proceed with adjudication of this issue. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. To prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Sleep Apnea The Veteran contends that her sleep apnea is due to her military service. Alternatively, the issue was raised that her service-connected bilateral plantar fasciitis caused her post-service weight gain, which resulted in her sleep apnea. The record reveals that the Veteran has a current diagnosis of sleep apnea. See, for e.g., May 2016 VA Treatment Records. Thus, the main question for the Board is whether the Veteran's sleep apnea disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board will also address whether the Veteran's sleep apnea is proximately due to the service-connected bilateral plantar fasciitis, to include whether that service-connected disability resulted in obesity and caused the Veteran's sleep apnea. Service treatment records contain no complaints of, or treatment for, sleep apnea or related symptoms. On a Report of Medical History, dated in August 2011, approximately two months before the Veteran left service, she indicated that she did not experience "frequent trouble sleeping." Post-service VA medical records contain a positive sleep apnea test in May 2016, almost five years after the Veteran separated from active service. The treatment notes state that a review of a sleep study revealed severe obstructive sleep apnea. Although the presence of symptoms is not the same as seeking treatment for symptoms, this long period of time without evidence of seeking treatment tends to weigh against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In May 2016, the Veteran submitted lay statements from two fellow soldiers, D.C. and K.T., who indicated that they witnessed the Veteran snoring loudly during service. They also stated that they witnessed the Veteran experiencing breathing difficulties while sleeping. In August 2016, a VA examiner negatively opined that the Veteran's sleep apnea was less likely than not related to service. She stated that the Veteran experienced significant weight gain after leaving service and that the weight gain is the main causative risk factor for sleep apnea. She explained that the Veteran was relatively young at separation, at the age of 26, and that a younger age makes sleep apnea less likely. The examiner also noted that the Veteran was overweight at separation, and that most young, overweight adults do not have sleep apnea. She concluded that the Veteran likely developed sleep apnea after separation due to significant weight gain. The Board notes that the examiner's opinion is somewhat contradictory, concerning the relationship between the Veteran's weight and sleep apnea. As such, the Board sought another medical opinion, obtained in May 2019. In the May 2019 addendum medical opinion, a VA examiner negatively opined that the Veteran's sleep apnea was less likely than not related to the Veteran's service. As rationale, she stated that the Veteran's records are silent for sleep conditions in service. She explained that, without evidence in the Veteran's service treatment records, she could not connect the Veteran's condition to service, as five years had passed between separation and diagnosis. The examiner noted that the most likely cause of the Veteran's sleep apnea is excessive body weight, as it is the most common cause of sleep apnea, which is present in the Veteran's case. She explained that the Veteran weighed 170 pounds at discharge from service, but that the Veteran's weight had increased to 240 pounds when she was diagnosed with sleep apnea in 2016, almost five years from service discharge. The examiner concluded that this weight gain was sufficient to cause a new onset of sleep apnea. The Veteran was afforded another VA examination in October 2021 for her sleep apnea. The examiner also negatively opined that the Veteran's sleep apnea was not related to her active service. He explained that the Veteran was found to have sleep apnea nearly five years after service, in May 2016, and that a review of her service treatment records did not reveal any documented evidence suggestive of sleep apnea. He referred to the Veteran's retirement examination report of medical history questionnaire, on which the Veteran indicated that she did not experience frequent trouble sleeping. He also referred to lay statements submitted by two of the Veteran's fellow soldiers and explained that the reported symptoms are nonspecific and not diagnostic of sleep apnea. The examiner concluded that there is insufficient objective evidence or findings in service to support a temporal connection or link between the Veteran's sleep apnea and her active service. While the United States Court of Appeals for Veterans Claims held in Marcelino v. Shulkin, 6 Vet. App. Jan. 23, 2018, that "there is currently no provision in the rating schedule to compensate for obesity," VA's Office of General Counsel (OGC) issued an opinion that a claim for secondary service connection may be based on obesity 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. This "intermediate step" under 38 C.F.R. § 3.310 (a) equates to an inquiry into proximate cause requiring a 3-step analysis, namely of (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the Veteran's sleep apnea may be service-connected on a secondary basis. In this regard, the Board sought an opinion regarding a relationship between the Veteran's service-connected bilateral plantar fasciitis, obesity, and sleep apnea. The October 2021 VA examiner opined that sleep apnea was not proximately due to, or the result of, the Veteran's service-connected bilateral plantar fasciitis. He noted that obesity is multifactorial in origin, caused from interactions between genetic and environmental influences, and not caused by one sole factor. He explained that inadequate physical activity is one factor that can contribute to weight gain and obesity, although this would be in combination with other factors, including one's eating patterns, frequency of eating, food choices, and total caloric intake, especially if such intake far exceeds total expenditures in activity or exercise. He further explained that there are also genetic factors involved, and that such an interplay of these factors is summarized in "Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults--The Evidence Report. National Institutes of Health," published by the National Heart, Lung, and Blood Institute. The examiner stated that, upon review of the Veteran's specific treatment medical records, there is no objective evidence or records that specifically reflect or demonstrate that her weight gain and obesity were specifically attributable to, or primarily caused by, her plantar fasciitis. He reiterated that, based on his medical understanding of obesity and a review of the Veteran's specific medical records, it is less likely than not that her plantar fasciitis caused her to become obese. He concluded that the Veteran's plantar fasciitis could not have caused her sleep apnea, based on his findings. Based on the above, the Board finds that the evidence does not support a finding that the Veteran's sleep apnea is related to her active service. The Board also finds that there is no basis to find a link between the Veteran's service-connected bilateral plantar fasciitis and her obesity, and therefore no basis to find that the Veteran's obesity is an "intermediate step" between her plantar fasciitis and her sleep apnea, to permit service-connection on a secondary basis under 38 C.F.R. § 3.310 (a). In making these determinations, the Board assigns probative weight to the October 2021 VA examination and opinion. The Board finds that the October 2021 VA examiner's opinion is highly probative because the examiner provided a detailed rationale based on the Veteran's sleep study, medical history, lay statements, and review of medical literature. Prejean v. West, 13 Vet. App. at 448-9 (2000). The examiner did not base his opinion solely on a lack of contemporaneous medical records; he considered all the evidence of record. Importantly, the examiner's opinion is supported by a well-reasoned rationale, consistent with the evidence of record, and is based on an accurate interpretation of the record. The Board acknowledges the Veteran's submitted lay statements, which indicate that her sleep apnea is related to her active service. While the Veteran and her fellow soldiers, as laypersons, are competent to observe issues with sleeping, there is no indication that they possess medical expertise, and are therefore not competent to provide a diagnosis or nexus opinion in this case, as the issue concerning the diagnosis and etiology of obstructive sleep apnea is a medically complex one. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the claim of entitlement to service connection for sleep apnea is not warranted on either a direct or secondary basis. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable in this case because the preponderance of the evidence is against the claim. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.