Citation Nr: 21013490 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-28 067 DATE: March 9, 2021 ORDER Entitlement to service connection for sleep apnea is denied Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s diagnosed obstructive sleep apnea is not secondary to his service-connected disabilities, and is not otherwise related to an in-service injury or disease. 2. The Veteran’s claimed hypertension is not secondary to his service-connected disabilities, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to December 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2012 by a VA Regional Office (RO) which, in pertinent part, denied service connection for sleep apnea and hypertension. This matter was last before the Board in August 2020, at which time both issues were remanded for further development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected depression The Veteran seeks service connection for sleep apnea on a secondary basis, as related to his obesity. For the reasons that follow, the Board finds that service connection is not warranted. At the outset, the Board notes that the Veteran has been diagnosed with obstructive sleep apnea following a sleep study on May 18, 2005. Treatment records also establish that the Veteran is obese. The Veteran has also been service-connected for major depressive disorder effective from October 22, 2010. The Veteran’s representative has argued that while the Veteran’s obesity cannot be service connected, it can be used as a “steppingstone” to service connection for the Veteran’s current sleep apnea. Although obesity is not considered a disease or injury for VA purposes and generally may not be service-connected on a direct or secondary basis, see Marcelino v. Shulkin, 29 Vet. App. 156 (2018), if it represents an intermediate step between a service-connected disability and a current disability, depending upon its role in the development of the secondary disability, it may be service-connected on a secondary basis. VAOPGCPREC 1-2017 (Jan. 6, 2017). This guidance received the Court’s endorsement as to the soundness of its analysis in Walsh v. Wilkie, 32 Vet. App. 300, 305 (2020). More recently, in Garner v. Tran, No. 18-5865 (2020), the Court again discussed the theory of obesity as an intermediary step. Although non-exhaustive, the Court laid out six factors to consider to include: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication (e.g., weight gain), where the medication is prescribed for service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physician or medical examiners attributing weight gain or obesity to the service-connected disability. The Veteran’s attorney has argued broadly that the Veteran’s obesity is related to his service-connected conditions or a combination thereof. The attorney alleged broadly that there is a “reciprocal link” between obesity and depression and submitted a scientific article purporting to support that conclusion. See July 2020 Correspondence. The Veteran was afforded a VA examination for sleep apnea in February 2020. The examiner noted the Veteran was diagnosed with obstructive sleep apnea. The Veteran’s BMI was noted to be 34. The examiner, quoting medical literature, noted that the major risk factors for obstructive sleep apnea include excess weight and sex, with approximately 40 to 60 percent of cases being attributable to excess weight and its prevalence being two to four times higher among men than among women. The examiner also opined that depression and/or antidepressants are not recognized causes or aggravating risk factors for sleep apnea. While the examiner noted that some studies suggest an association or correlation, that does not imply causation. The examiner further stated that correlation must always be put into perspective with one of the weaknesses of observational studies being that all variables cannot be controlled. The examiner opined that it is less likely than not that the Veteran’s sleep apnea was caused by or aggravated by his service-connected acquired psychiatric condition, to include antidepressant medication usage. Ultimately, the examiner opined that the Veteran’s risk factors of male gender and obesity are the most likely etiology of his sleep apnea. Following the August 2020 Board remand, an addendum opinion was obtained from a different provider in August 2020. After review of the Veteran’s medical file, the examiner opined that it was less likely than not that the Veteran’s obesity was proximately due to, the result of, or aggravated by the Veteran’s service-connected acquired psychiatric condition or any of his other service-connected disabilities. The examiner reviewed the article submitted by the Veteran and noted that the study’s conclusion was that obesity increases the risk of depression and depression was found to be predictive of developing obesity. The examiner emphasized that depression predicting obesity does not constitute a cause or a risk factor for obesity. Instead, the examiner pointed to several medically accepted risk factors for developing obesity. The examiner found that the Veteran’s ethnicity, genetics, lifestyle of excess caloric intake and smoking cessation were all risk factors for developing apnea. The Veteran’s medications were also reviewed, and the examiner noted weight gain was not listed as a side effect. In a subsequent October 2020 opinion, the examiner further clarified that obesity is a health problem that results from a combination of causes and contributing factors, to include individual factors such as behavior and genetics, and therefore cannot be etiologically linked to only one cause. The examiner noted that research studies submitted by the Veteran’s counsel have shown association between obesity and depression, which does not equal causation. While cravings, and overeating can be related to increased risk of some weight gain, the examiner found that these can be managed and do not translate directly into obesity. The examiner emphasized that obesity as a pathological entity is multifactorial, as shown by the fact that depression is seen also in non-obese people. The examiner concluded that the Veteran’s obesity is less likely than not due to or the result of the Veteran’s service-connected acquired psychiatric condition. The Board finds these opinions, in the aggregate, to be highly probative. Significantly, there is no probative competent medical opinion of record to the contrary. Turning to the factors outlined in Garner, the Veteran does not have orthopedic conditions or chronically painful conditions. The record is also devoid of the evidence that side effects of the Veteran’s medications include weight gain, with the August 2020 examiner explicitly finding that not to be the case. While the Veteran has submitted treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition, the August and October 2020 examiner reviewed the same and opined that its finding suggested an association but not causation, which is difficult to determine in a multifactorial condition such as obesity. As noted earlier, there are no competent medical opinions of record that attribute the Veteran’s weight gain to obesity. The remaining two factors set out in Garner consist of whether reduced physical activity or inability to follow a course of exercise or diet was a result of service-connected mental disability and the Veteran’s lay statements attributing his weight gain to a service-connected disability. The record does not contain objective indications that the Veteran’s service-connected acquired psychiatric condition caused the Veteran to be unable to follow an exercise or diet. Any indications to that effect are based on the Veteran’s lay statements and observations. The Board has considered the lay statements from the Veteran attributing his weight gain to his acquired psychiatric condition. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, however he cannot provide competent evidence as to the etiology of his obesity considering the complex medical nature of the question. The Board notes here that competent medical evidence from VA examiners and the research article the Veteran submitted attest to obesity’s pathology being multifactorial without scientific consensus on causality. The Veteran has not been shown to possess specialized training sufficient to render such an opinion and therefore his lay assertions are accorded little probative value. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding that obesity constitutes an intermediate step between a service-connected acquired psychiatric disability and the Veteran’s current sleep apnea. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea, to include as secondary to service-connected disabilities, and that the claim must be denied. 2. Entitlement to service connection for hypertension, to include as secondary to sleep apnea The Veteran has alleged that his current hypertension is proximately due to or aggravated by his sleep apnea, for which he sought service connection. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. As noted above, the Board has found the Veteran is not entitled to service connection for obstructive sleep apnea. There is no legal basis upon which to award service connection for a disability that is secondary to a disability that is not service connected. 38 C.F.R. § 3.310. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s hypertension is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran is competent to report that he suffers from and continues to seek treatment for his hypertension, however, the Veteran’s medical records, including his service treatment records (STRs), are negative for abnormal blood pressure readings or a diagnosis of hypertension. Accordingly, the Veteran’s claim for service connection for hypertension is denied. Jack S. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.