Citation Nr: 21009281 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-03 322 DATE: February 22, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to a current service-connected disability and resulting obesity, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his sleep apnea is at least as likely as not due to or aggravated by a current service-connected disability and resulting obesity. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to a current service-connected disability and resulting obesity are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to December 1992. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). This claim was previously been before the Board in October 2018 and October 2020, when it was remanded for further development. The case has now been returned to the Board for further adjudication. Entitlement to service connection for sleep apnea, to include as secondary to a current service-connected disability and resulting obesity Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 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 by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Additionally, VA's Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts that his sleep apnea is due to active service, to include as secondary to a currently service-connected disability and resulting obesity. The Veteran’s medical treatment records indicate he was diagnosed with sleep apnea in February 2011. Additionally, service connection for an acquired psychiatric disability and several orthopedic and neurological disabilities have been in effect since 2011 and 2017, respectively. Pertinent to the present appeal, the Veteran’s VA treatment records reflect a body mass index in excess of 30, which meets VA’s definition of obesity, and his obesity is, in part, due to the effects of his service-connected disabilities and medications prescribed therefore. Concerning evidence of a medical nexus, the Veteran was provided with a medical opinion in December 2020, to specifically address secondary service connection and secondary service connection through the intermediate step of obesity. The December 2020 VA examiner noted that none of the Veteran’s service-connected conditions directly caused the Veteran’s sleep apnea. The examiner further stated that none of the Veteran’s service-connected disabilities would cause the Veteran’s obesity alone, as there are many factors that influence obesity, including ability to exercise. The examiner stated that obesity and weight gain do not cause sleep apnea, but that they are risk factors for sleep apnea. Finally, the examiner stated that although sleep disturbances are common with psychological conditions, they do not impact the mechanism of sleep apnea, but contribute to sleep apnea symptoms independently. While it appears that this opinion is unfavorable to the Veteran’s appeal, a closer reading of the reasoning provided by the VA examiner reveals that the examiner does conclude that obesity is a risk factor for sleep apnea, and that the Veteran’s service connected disabilities contributed to his obesity in terms of how they affected the Veteran’s ability to exercise. The Board therefore concludes that the December 2020 VA examiner’s statement, when read in whole, is favorable to the Veteran’s appeal. As stated by the VA examiner, while the Veteran’s service-connected disabilities are not the sole cause of his sleep apnea, the entirety of the Veteran’s service-connected disabilities contributed to his obesity, which is a risk factor for his sleep apnea. While the opinion otherwise contains seemingly contrary statements, it was rendered after a review of the full medical record and clearly opines a relationship between the Veteran’s service-connected disabilities and his obesity that has, in turn, contributed to his sleep apnea– as the Veteran has asserted throughout the pendency of the appeal. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). As such, the Board finds that the nexus requirement between service-connected disability and resulting obesity, and the Veteran’s sleep apnea has been demonstrated, and that entitlement to service connection for sleep apnea is therefore warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.