Citation Nr: 21077111 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-01 348 DATE: December 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service-connected thoracic spine compression deformity of T11-T12 with mild degenerative joint disease at that level with chronic pain, is granted. FINDING OF FACT The Veteran's obesity was an intermediate step between his obstructive sleep apnea and his service-connected thoracic spine compression deformity of T11-T12 with mild degenerative joint disease at that level with chronic pain. CONCLUSION OF LAW The criteria to establish entitlement to service connection for obstructive sleep apnea as secondary to service-connected thoracic spine compression deformity of T11-T12 with mild degenerative joint disease at that level with chronic pain have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from April 1986 to December 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript from that proceeding is associated with the claims file. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected thoracic spine compression deformity of T11-T12 with mild degenerative joint disease at that level with chronic pain; and/or depressive disorder, not otherwise specified. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially 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 granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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 disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). The Board notes that obesity is not a disease or disability for which service connection may be granted. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code" and "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310 "). However, service connection may be granted under 38 C.F.R. § 3.310(a) if obesity was an "intermediate step" between a service-connected disability and a current disorder. See VAOPGCPREC 1-2017. In order for secondary service connection to be granted under theory, the record must demonstrate that: (1) the service-connected disability caused the veteran to become obese; or aggravated his obesity; (2) the obesity, or the aggravation of obesity, as a result of the service-connected disability was a substantial factor in causing the claimed disorder; and (3) the claimed disorder would not have occurred but for obesity caused or aggravated by the service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). In this case, the record has raised the theory that the Veteran's obesity was an intermediate step between his claimed sleep apnea and his service-connected thoracic spine compression deformity of T11-T12 with mild degenerative joint disease at that level with chronic pain; and/or depressive disorder, not otherwise specified. The Veteran's service treatment records (STRs) are silent for a complaint, treatment, or diagnosis related to obesity or sleep apnea. The April 1986 enlistment examination noted that he weighed 200 pounds. In the April 1986 Report of Medical History, the Veteran denied a history of frequent trouble sleeping or a recent gain or loss of weight. In March 1988, the Veteran reported having intermittent low back pain since boot camp. The assessment was chronic back pain. In April 1988, an STR noted that the Veteran's low back pain was aggravated by carrying packs, prolonged walking, standing, and lifting. In September 1988, a medical board report stated that the Veteran had been diagnosed with mechanical lower thoracic back pain in August 1988. The Veteran had been well until July 1986 when he sustained an onset of lower thoracic back pain that he attributed to a fall in boot camp. The report stated that the Veteran had been treated with a prolonged course of light duty, intermittent bedrest, mild analgesics, and physical therapy that included back school to no avail. He was unable to perform the physical requirements of his rank and military occupational specialty. After service, a June 1989 VA examination noted that the Veteran reported having low back problems that started in boot camp after he fell and injured his low back. He was currently experiencing pain in the middle of his back that was precipitated by lifting, lying down, or prolonged sitting. His weight was noted to be 210 pounds. During a subsequent September 1991 VA examination, the Veteran reported having chronic back pain since service that was a 5 out of 10. The pain was a constant dull ache, and he described experiencing a crunching of the back whenever he moved. The lumbosacral pain came and went with activity, and it was worse with lifting. The Veteran reported that he could no longer plays sports, and he was unable to lift over 40 pounds without increasing his pain. The Veteran's weight was noted to be 234 pounds. During an orthopedic consultation in October 1997, the Veteran reported having constant pain in the mid-thoracic and low back. His weight was noted to be 254 pounds. In September 1999, a VA examination related to the thoracolumbar spine noted that the Veteran continued to have pain in the mid-thoracic spine. He was restricted in his employment to work that did not require upper body lifting. Bending, twisting, or lifting worsened his pain. He often had trouble sleeping and rising from bed in the morning, and he tried to lie down as much as possible. The Veteran's weight was 242 pounds. In November 2001, a VA treatment record reported that the Veteran had experienced chronic thoracic and lumbar back pain since 1987. Although he had not been adhering to a low fat, low cholesterol diet; he did exercise on a daily basis. The Veteran was described as well-appearing, and his weight was noted to be 235 pounds. In a subsequent September 2007 VA treatment record, the Veteran complained of chronic thoracic back pain. The pain was constant over the lower, mid-thoracic spine; and it was worse with lifting and any prolonged period in one position. The Veteran found some back exercises that he performed each morning to be helpful. The Veteran's weight was noted to be 255 pounds, and his body mass index (BMI) was 31.9. The record stated that he had level I obesity. In March 2011, a VA treatment record reported that the Veteran weight 263 pounds. His BMI was 32.1, a value that still represented level I obesity. The record stated that the Veteran received education that the health risks of obesity included sleep apnea. In August 2011, a review of systems stated that there was no sleep apnea. In a November 2011 VA treatment record, the Veteran reported having chronic back pain that was severe and not well-controlled by therapy. He asked about sleeping pills as he had difficulty sleeping and sleep fragmentation. In February 2012, a VA treatment record stated that the Veteran had mid-back pain that was gradually worsening. The pain was made worse by lifting and standing. Although the Veteran had been through physical therapy more than once, it did not help. The Veteran was working as a plumber and needed help with his bending, stooping, and lifting. It was becoming harder and harder to work. The Veteran's weight was 252 pounds, and he continued to have level 1 obesity. In June 2012, a VA treatment record related to the Veteran's chronic back pain stated that the Veteran's pain had gradually worsened over the past 3 to 4 years. He now had difficulty driving, walking, and sitting. In terms of exercise, the record stated that the Veteran tried to walk, but he was limited by pain and spasms. Regarding his nutrition, the Veteran had daily caffeine and consumed alcohol on Fridays. He also tried to avoid processed food. The assessment stated that the Veteran presented with declined functional mobility and decreased physical activity tolerance related to chronic pain. In April 2015, a VA treatment record identified the reason for the Veteran's enrollment in Care Coordinated Home Telehealth (CCHT) as obesity. The record indicated that he was undergoing daily monitoring with dialogue related to Veterans Health Administration (VHA) Weight Management. The nursing assessment noted that he had ongoing post-injury pain that caused the Veteran to wake numerous times at night. He also had possible obstructive sleep apnea. In terms of exercise, he was walking short distances and might obtain an elliptical. However, a prolonged period in any position caused extreme pain. The Veteran's weight was 261 pounds, and his BMI was 33.23. Also in April 2015, the Veteran reported that he woke up in the middle of the night gasping with his heart pounding and was wondering about sleep apnea. He did endorse daytime fatigue, but he was unsure whether this symptom was due to a sleep disorder or chronic pain. The record noted that the Veteran's weight was 261.76 pounds, adding that it was "gradually creeping up." The assessment included chronic spine pain and possible sleep apnea. A plan was made to request local testing. In a July 2015 letter, Dr. S., MD, noted that the Veteran had a history of insomnia. He woke up numerous times at night and snored. Although he had not witnessed any apneic episodes, he did feel fatigued and sleepy on a regular basis. The record noted that he weighed 250 pounds. The impression included obstructive sleep apnea, and Dr. S. stated that the Veteran likely had the disorder based on a crowded pharynx and clinical symptoms. Dr. S. added that he had gone over alternative therapies for treating obstructive sleep apnea, a list that included weight loss. Later in July 2015, the Veteran underwent a full attended polysomnogram. The history and indication section of the record noted that the Veteran had a history of insomnia and numerous awakenings at night, adding that he did snore and have fatigue in addition to obesity. The impression stated that the Veteran showed evidence of severe obstructive sleep apnea on the current test. In January 2016, a VA treatment record noted an assessment of obstructive sleep apnea in light of the Veteran's sleep studies. The provider indicated that this diagnosis was better supported by the study reports than a diagnosis of obesity hypoventilation syndrome as the Veteran's BMI was 32, and obesity hypoventilation syndrome was present in patients with severe obesity typically having a BMI in the 40's. A plan was made to start the Veteran on a continuous positive airway pressure (CPAP) machine. The record also noted that weight loss was encouraged. In September 2021, J.P., a VA nurse practitioner, provided an opinion addressing the Veteran's claim. J.P. noted that the Veteran was his patient and had been diagnosed with obstructive sleep apnea. J.P. opined that it was more likely than not that the Veteran's preexisting medical conditions such as chronic low back pain, depression, and medications had contributed to worsening obstructive sleep apnea due to difficulty losing weight related to exercise intolerance and potential medication side effects. The Board finds that J.P.'s discussion of the Veteran's difficulty losing weight contemplates the clinical assessments of obesity that have been documented throughout his treatment records. To the extent that J.P.'s reference to the "worsening" of obstructive sleep apnea addressed the aggravation prong of secondary service connection under 38 C.F.R. § 3.310(b), the Board finds that J.P.'s rationale indicating that the Veteran's difficulty losing weight is related in part to exercise intolerance associated with his service-connected thoracolumbar spine disability addresses 38 C.F.R. § 3.310(a). The Board also finds that J.P.'s opinion provides probative value when it is considered as a whole and in the context of the record as it addresses the medical issues in this case and was based on an analysis of the evidence and current medical understanding. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion); see also Acevedo v. Shinseki, 25 Vet. App. 289, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). J.P.'s rationale is additionally consistent with the June 2012 VA treatment record's assessment in relation to the Veteran's back pain that the Veteran had declined functional mobility and decreased physical activity tolerance related to chronic pain. Accordingly, this opinion provides probative evidence to support the conclusion that the Veteran's obesity was caused in part by exercise intolerance stemming from his service-connected thoracolumbar spine disability. Furthermore, J.P. indicated that the obstructive sleep apnea was secondary to the Veteran's obesity or difficulty losing weight. In consideration of this opinion and the information from the VA treatment records that obesity is a health risk for sleep apnea, the Board will interpret the opinion in the manner most favorable to the Veteran and find that it supports a causal relationship between the Veteran's obesity and the development of obstructive sleep apnea. Cf. Brown v. Gardner, 513 U.S. 115, 118 (1994) (in construing Veterans' law, "interpretive doubt is to be resolved in the Veteran's favor"). In light of the above evidence, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's obesity was a substantial factor in causing the obstructive sleep apnea, and the sleep apnea would not have occurred but for the obesity. As such, the necessary factors for the Veteran's obesity to be considered an intermediate step between his obstructive sleep apnea and his service-connected thoracolumbar spine disability have been satisfied. Consequently, entitlement to service connection for sleep apnea is granted as secondary to the service-connected thoracic spine compression deformity of T11-T12 with mild degenerative joint disease at that level with chronic pain. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.310. As the Board is granting service connection on this basis, it is unnecessary to address any other theory of entitlement that has been advanced. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.