Citation Nr: 21076392 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-55 154 DATE: December 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's sleep apnea arose during or as a result of his active service, including as secondarily caused or aggravated by his service-connected sinusitis, bilateral knee condition, bilateral ankle conditions, or any weight gain resulting from those service-connected conditions or the medication prescribed for their treatment. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1983 to October 1987 and the United States Army from June 1990 to August 1994. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in December 2018, March 2020, June 2021, and September 2021 for further development. The Board finds that the RO substantially complied with its September 2021 remand directives. Accordingly, the Board may proceed with adjudication. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, The Veteran asserts that his sleep apnea arose during or was a caused by his active service, including as secondary to his service-connected disabilities or from weight gain resulting from those disabilities. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 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 or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Accordingly, service connection may not be granted for obesity. Additionally, obesity cannot be the underlying basis for service connection. That is to say, obesity is not an in-service incurrence, and, therefore, service connection may not be granted for a separate disability medically linked to in-service obesity. As obesity is not a disability per se, service connection may not be granted for another disability rating proximately caused by obesity. Nevertheless, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. To meet these criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese, that obesity was a substantial factor in causing secondary disability, and that the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). In this case, the Veteran's service treatment records are negative for complaints, treatment, or diagnosis of sleep apnea or other sleep-related problems. The Veteran's VA and private treatment records are negative for complaints, treatment, or diagnosis of sleep apnea in the 12-month period immediately following separation from active service. They are also negative for medical opinions supporting his claim. March 2007 private treatment records reflect the Veteran being referred to a sleep clinic after complaints of increased snoring. He was subsequently diagnosed with sleep apnea. In a November 2014 statement in support of his claim, the Veteran asserted that his sleep apnea arose during or as a result of his active service, including as secondary to service-connected sinusitis, which had been claimed as allergies. In a November 2014 Notice of Disagreement (NOD), the Veteran asserted that his sleep apnea may have been caused by chemical exposure during service. In another November 2014 statement in support of his claim, the Veteran asserted that he had been experiencing sinus and sleep problems since service. March 2016 VA treatment records reflect that the Veteran was tested for sleep apnea in 2004. In December 2018, the Veteran submitted lay statements in support of his claim from his sister and brother. They corroborated the Veteran's assertions that his health had declined since service, and he was positive for sleep apnea. His brother stated that he noticed the Veteran snored very loudly during service. In a September 2019 VA medical opinion, the VA examiner opined that his sleep apnea was less likely than not related to service, including as secondary to his service-connected sinusitis. The examiner stated that sleep apnea was caused by multiple factors, including aging, weight gain, smoking, and others. The examiner found insufficient evidence in the relevant medical literature that sinusitis could cause sleep apnea and provided citations to relevant articles. They also opined that his sleep apnea was less likely than not aggravated by his sinusitis. In a January 2020 lay statement, the Veteran's wife asserted that he snored severely during service, experienced chronic problems with allergies, and his allergies and sleep apnea symptoms had increased in severity over time. She asserted that his sleep apnea was caused by chemical exposure during service as well as his allergies and related conditions. The Board notes that while it finds the Veteran's wife credible, she is not a trained medical professional. She may competently report symptoms capable of lay observation that she directly observed and that were reported to her. However, she lacks the training or credentials necessary to diagnose or to provide an onset date for a medical condition such as sleep apnea. Accordingly, the Board lends her statement only limited probative weight. In a May 2020 VA medical opinion, the VA examiner opined that the Veteran's sleep apnea was less likely than not related to service. The examiner noted a sleep study was performed in 2000. The examiner considered the lay reports provided by the Veteran and his family, but they found that the symptoms they reported were general and non-specific. There was insufficient evidence to conclude that he had sleep apnea during service. The examiner also opined that it was less likely than not that his sleep apnea was aggravated by his sinusitis. In July 2021, the VA examiner opined that the Veteran's service-connected sinusitis did not cause his sleep apnea. The rationale was that there was insufficient evidence of causation in the Veteran's case and insufficient evidence supporting the causal theory in the relevant medical literature. The examiner stated that the Veteran had underlying insulin resistance, manifested as obesity, hypertension, and hyperlipidemia, and these were more likely the cause of his sleep apnea. Over the course of three separate October 2021 opinions, the VA examiner opined that the Veteran's obesity was a substantial factor in developing sleep apnea. However, his obesity was less likely than not caused by his service-connected sinusitis, knee, and ankle conditions. They also opined that while the medications he was prescribed, including steroids, could lead to weight gain, such weight gain was temporary and generally went away when the medications were no longer used. The examiner noted that the Veteran had been advised of the need to change his diet and exercise habits, and these habits were more likely the cause of his obesity. The examiner also opined that his service-connected sinusitis, knee, and ankle conditions had less likely than not aggravated his obesity. The Veteran's weight gain was steady and incremental throughout the years, with no change in dietary or exercise-related habits. There was no indication that his steroid use, ankle conditions, or knee conditions had caused a permanent worsening of his obesity. Additionally, the examiner opined that it was less likely than not that his service-connected disabilities had aggravated the Veteran's sleep apnea, noting that the Veteran's medical records showed good compliance with CPAP use, and no indication of increased apneic episodes to suggest worsening sleep apnea. The Board is aware that there is no requirement of "permanent" aggravation on a secondary basis. Specifically, Ward v. Wilkie, 31 Vet. App. 233 (2019) held that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. Putting aside that one comment from the examiner, however, the opinion as a whole otherwise indicates conclusively that the preponderance of the evidence is against any aggravation, permanent or otherwise. The examiner separately clarified that the service-connected disabilities did not aggravate sleep apnea, and also asserted that any weight changes due to steroids were transient and that diet and exercise habits were more likely to be the cause of obesity. Viewing the "permanent" statement within the full context of the examiner's opinion, the Board finds the opinion to be fully adequate to respond to the prior remand request and to establish that aggravation, including with obesity as an intermediate step, has not been demonstrated in this case. The Veteran has consistently asserted that his sleep apnea arose during or as a result of his active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the pertinent various VA medical opinions of record. The Board finds the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea. While the Veteran and his family have reported that the Veteran experienced severe snoring during service, the Veteran's STRs are negative for complaints, treatment, or diagnosis for sleep problems. There is no documented medical evidence of sleep apnea prior to 2000. No medical opinion supports the Veteran's claim. The various VA medical opinions of record have all found that the Veteran's sleep apnea was less likely than not related to service, his service-connected disabilities, and any weight gain due to those disabilities or their treatment. While the Veteran's lay statements have been considered, the Board finds that they are outweighed by the medical evidence of record. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea. Accordingly, the claim is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.