Citation Nr: 21011978 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-05 477 DATE: March 3, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to the service-connected disability of residuals of left ankle injury with reflex sympathetic dystrophy with arthritis and total right knee replacement is granted. FINDING OF FACT The Veteran’s sleep apnea is proximately due to his service-connected disability of residuals of left ankle injury with reflex sympathetic dystrophy with arthritis and total right knee replacement. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to service-connected disability of residuals of left ankle injury with reflex sympathetic dystrophy with arthritis and total right knee replacement 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 in the United States Army from May 1988 to September 1991 and from September 1992 to November 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2021, a hearing was held before the undersigned Veterans Law Judge. As the benefit sought on appeal can be granted in full, the Board will expedite the decision and a copy of the transcript will be added to the claims folder at a later date. Service connection for sleep apnea as secondary to the service-connected disability of residuals of left ankle injury with reflex sympathetic dystrophy with arthritis and total right knee replacement To establish service connection, the evidence must generally show (1) a present disability, (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d).   Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of  “disability” – ”the impairment of earning capacity due to disease, injury, or defect.” Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). VA’s Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a “disease” for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes 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 or secondary basis. The opinion notes that particularities of body type, such as being overweight or underweight, do not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service “event” for the purposes of establishing service connection. Furthermore, the opinion noted that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet this criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his obstructive sleep apnea is secondary weight gain caused by his service-connected conditions. Because the benefit sought on appeal can be granted in full on a secondary basis, the Board’s adjudication will consider only entitlement to secondary service connection. See 38 C.F.R. § 3.310. The Veteran’s service treatment records show that the he suffered an in-service left ankle fracture, which led to a diagnosis of reflex sympathetic dystrophy (RSD) of the left ankle. The Veteran’s RSD of the left ankle caused the Veteran to overcompensate which led to premature osteoarthritis of the right knee, requiring a total knee replacement to eliminate pain and regain function. The Veteran is service connected for the residuals of left ankle injury with reflex sympathetic dystrophy with arthritis and total right knee replacement. The Veteran’s post service treatment records contain complaints and treatment of sleep apnea. Additionally, following an October 2017 sleep study, the Veteran was diagnosed with obstructive sleep apnea. In connection with this claim, the Veteran underwent a VA examination in June 2018, where the examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. During the exam, the Veteran reported that he has difficulty sleeping at night because of his sleep apnea, and that he currently uses a CPAP machine. The examiner determined that based on the current severity of the Veteran’s service-connected conditions, the Veteran’s obstructive sleep apnea is at least as likely as not proximately due to or the result of the Veteran’s service-connected conditions. The examiner further opined that the Veteran’s obstructive sleep apnea is most likely related to his weight gain/morbid obesity which is a result of decreased mobility caused by his service-connected conditions. The Veteran’s obstructive sleep apnea began subsequent to the service-connected total right knee replacement and is the direct result of the antecedent condition, as supported by medical literature. Following the June 2018 VA examination, where the examiner determined that the Veteran’s obstructive sleep apnea is at least as likely as not proximately due to or the result of the Veteran’s service-connected conditions, the AOJ sought an addendum opinion. In June 2018, following review of the record, a different VA examiner concluded that the Veteran’s obstructive sleep apnea less likely than not proximately due to or the result of the Veteran’s service-connected conditions. In support of this determination, the examiner stated that the medical literature does not support a relationship between sleep apnea and any musculoskeletal conditions. No further rational was provided, nor was the Veteran’s post knee replacement weight gain discussed. Upon review of the evidence, the Board finds that service connection for sleep apnea on a secondary basis is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea. Furthermore, there is medical evidence that the limited mobility, due to his service-connected conditions, led to his obesity; the Veteran’s obesity was a substantial factor in causing his obstructive sleep apnea; and the Veteran’s sleep apnea would only have occurred but for his obesity. See VAOPGCPREC 1-2017 (January 6, 2017). (continued on the next page) Lastly, while the Board has been presented with positive and negative evidence on this matter, the Board finds the June 2018 VA examiner’s positive nexus opinion the most probative. Notably, the June 2018 examiner discussed how the Veteran’s service-connected conditions caused limited mobility leading to the Veteran’s weight gain/morbid obesity, which later resulted in the Veteran’s diagnosis of obstructive sleep apnea. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea as secondary to disability of residuals of left ankle injury with reflex sympathetic dystrophy with arthritis and total right knee replacement is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.