Citation Nr: 21010825 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 09-46 562 DATE: February 25, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT Obstructive sleep apnea is caused by obesity, and the evidence is in equipoise as to whether the Veteran’s obesity is caused by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to service-connected disabilities are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from October 1965 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision. It was previously remanded by the Board in August 2014, May 2016, June 2017 and November 2017. In August 2019, the Board issued a decision denying the claim on appeal. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded the matter back to the Board in September 2020 for action consistent with the terms of the JMR. Service connection for obstructive sleep apnea Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). During the pendency of the Veteran’s appeal, VA’s Office of General Counsel (OGC) issued an opinion which, in part, stated that obesity may serve as an “intermediate step” between a service-connected disability and a current disability. See VAOPGCPREC 1-2017. The test for making that determination is 1) whether a service-connected disability caused a veteran to become obese; 2) if so, whether the resulting obesity was a substantial factor in causing the current disability being claimed; and 3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. The second prong, stated differently, asks whether there is a medical theory causally connecting the obesity to the current disability. The third prong, stated differently, asks whether the current disability would have developed the same way if obesity was absent. See Shyface v. Sec’y of Health and Human Svs., 165 F.3d. 1344 (Fed Cir. 1999) (discussing “substantial factor” and “but for” causation). One of the Veteran’s contentions is that his service-connected disabilities, including a left humerus fracture, left wrist fracture, lumbosacral arthrosis and anterolisthesis, left arm paresthesias, and left leg neuropathy and radiculopathy, prevented him from exercising, which led to obesity, which led to his sleep apnea. The Veteran was diagnosed with obstructive sleep apnea through a January 2007 sleep study. Various VA opinion obtained during the appeal confirm that it is at least as likely as not that obesity was a cause, or major contributing factor, for sleep apnea. Thus, the question is whether there is a relationship between the Veteran’s obesity and his service-connected disabilities. In that regard, the Board notes that the Veteran weighed 154 pounds at the time of his August 1965 enlistment examination. In February 1969, he was involved in a motor vehicle accident which led to the service-connected disabilities cited above. At the time of the accident, he weighed 167 pounds. In other words, in the three-and-a-half years since his enlistment, he gained 13 pounds. Service treatment records from July 1969 show that the Veteran was placed on a limited duty profile for 6 months with recommendations that he avoid strenuous physical exertion or use of his injured hand. During his January 1970 separation examination, he weighed 180 pounds. In other words, in the one year following his motor vehicle accident, he gained an additional 13 pounds. The Veteran filed an initial claim for VA benefits shortly thereafter, and underwent a VA examination in June 1970. At the time of that examination, about six months after the separation examination, he weighed 185 pounds, and the examiner specifically noted that he was “husky” and “getting a little heavy.” Unfortunately, there is no additional data for the Veteran’s weight until several decades later, when he was in excess of 250 pounds. However, the above evidence shows that the Veteran gained 13 pounds from August 1965 to February 1969, then gained 18 pounds between February 1969 and June 1970, after his accident and the incurrence of some of his service-connected disabilities. The weight gain was noted by the June 1970 VA examiner, and the service treatment records confirm that the Veteran was recommended to avoid strenuous physical activity and the use of his hand. This generally comports with his April 2019 lay statements that his weight gain began after his car accident in service when he was unable to be physically active. Notably, VA opinions obtained during the appeal stated that the Veteran’s obesity was not associated with his service-connected disabilities, citing other risk factors such as his age and male gender. However, these opinions do not appear to have addressed, in detail, the above evidence. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities caused him to become obese. Resolving any doubts in the Veteran’s favor, the Board finds that service connection is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.