Citation Nr: 21011302 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-23 793 DATE: March 1, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran’s service-connected disabilities contributed to his obesity, which caused his obstructive sleep apnea. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea 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 had active service in the U.S. Army from August 1984 to April 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision. It was previously remanded by the Board for additional development in August 2018, October 2019 and July 2020. 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). The Veteran was diagnosed with obstructive sleep apnea in an April 2012 sleep study. One of his contentions is that his service-connected disabilities, including depressive disorder, lumbosacral strain, bilateral knee replacements, right shoulder arthritis, and radiculopathy of all four extremities, caused him to become obese, which in turn caused his sleep apnea. 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). Regarding the first prong, an August 2020 VA examiner stated that obesity was a complex issue resulting from a combination of causes, and initially indicated he was unable to say without resorting to speculation whether the Veteran’s service-connected disabilities had any impact on his obesity. However, in the rationale section of his opinion, he noted that the Veteran’s service-connected disabilities likely contributed to his obesity. The Board will resolve any doubts in the Veteran’s favor and find that the first prong (whether a service-connected disability caused a veteran to become obese) has been met. Regarding the second and third prongs, VA examiners from April 2019 and August 2020 both concluded that the Veteran’s weight/obesity was the likeliest contributor to his sleep apnea, and that point is undisputed. Therefore, the three prongs of the above test have been met, and service connection for obstructive sleep apnea secondary to service-connected disabilities through the intermediate step of obesity 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.