Citation Nr: 21006013 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 19-06 483 DATE: February 3, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT 1. The Veteran’s service-connected intervertebral disc syndrome, left lower extremity radiculopathy, PTSD, and left shoulder labral tear, contributed to his obesity. 2. Obesity was a substantial factor in causing sleep apnea. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to intervertebral disc syndrome, left lower extremity radiculopathy, PTSD, and left shoulder labral tear have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; VAOPGCPREC 1-2017 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1992 to December 1997, January 2004 to December 2004, and May 2008 to January 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to service connection for sleep apnea. The Veteran asserts that his current diagnosis of sleep apnea is related to his service-connected posttraumatic stress disorder (PTSD). This case was previously before the Board in February 2020, March 2020, August 2020, and November 2020. In November 2020 the claim was remanded for a medical opinion regarding whether obesity is an “intermediate step” between the Veteran’s service-connected disabilities and sleep apnea. The Board concludes that the Veteran’s service-connected disabilities contributed to his obesity and that obesity was a substantial factor in causing sleep apnea. 38 C.F.R. § 3.310(a); VAOPGCPREC 1-2017 In January 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion regarding whether obesity may be considered a “disease” for the purposes of service connection. In general, OGC concluded that obesity is not a disease or injury for purposes of service connection; however, obesity may act as an “intermediate step” between a service-connected disability and a current disability in a secondary service-connection analysis under 38 C.F.R. § 3.310(a). In effect, OGC concluded that if obesity is the result of a service-connected disability and was a substantial factor in the development of the current disability, entitlement to service connection for the current disability may be warranted. See VAOPGCPREC 1-2017. In order to determine if obesity is an “intermediate step,” an adjudicator must resolve the following issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. Id. In the present case, the Board notes that a December 2020 VA examiner opined that the Veteran’s service-connected disabilities at least as likely as not contributed to his current obesity. (12/03/2020, C&P Exam, p. 5). Based on this opinion, the Board finds that the Veteran’s service-connected disabilities caused his obesity. Thus, the Board will next consider whether obesity was a substantial factor in causing the claimed disability. On this point, the Board notes that the Veteran was overweight at the time of his diagnosis of sleep apnea and, according to the August 2020 VA examiner, obesity is the most common cause of obstructive sleep apnea. (9/1/2020, C&P Exam, p. 3). As such, the Board finds that the evidence is in relative equipoise concerning this question. The Board will therefore find in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board will next consider whether the claimed disability would not have occurred but for obesity. On this question there are probative opinions in favor of and against the claim. The August 2020 examiner noted that the Veteran was overweight at the time of his diagnosis. The examiner goes on to explain that obesity can cause excess soft tissue in the mouth and throat and that this excess soft tissue can cause the airway to become blocked during sleep, resulting in sleep apnea. (9/1/2020, C&P Exam, p. 3). Conversely, the December 2020 examiner opined that sleep apnea could have occurred but for the Veteran’s obesity. In rendering his opinion, the examiner noted that sleep apnea can occur in thin and normal weight people, as well as those who are overweight or obese. The examiner ultimately opined that the cause of the Veteran’s sleep apnea is “a crowded oropharynx with a small upper airway . . ..” (12/03/2020, C&P Exam, p. 5). The Board assigns less probative value to the December 2020 examiner’s opinion as to this point, as the examiner failed to explain the mechanism by which the Veteran’s oropharynx became crowded (e.g., whether his crowded oropharynx was related to obesity, genetics, or another medical condition). Moreover, given that there is excess soft tissue in the necks of overweight and obese people, as noted by the August 2020 examiner, “a crowded oropharynx” tends to support a finding that the Veteran’s sleep apnea is related to obesity. Therefore, the Board assigns a higher degree of probative value to the August 2020 examiner’s opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s sleep apnea is proximately due to his service-connected disabilities, to include intervertebral disc syndrome, left lower extremity radiculopathy, PTSD, and left shoulder labral tear. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.