Citation Nr: 21015105 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-28 186 DATE: March 16, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to service-connected right knee and right ankle disabilities, is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s obstructive sleep apnea is proximately due to his service-connected right knee and right ankle disabilities. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, as secondary to service-connected right knee and right ankle disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1979 to July 1994. The Veteran had service in Southwest Asia from February 1991 to June 1991. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in March 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In August 2019, the Board remanded this claim, as well as claims for entitlement to service connection for erectile dysfunction, bilateral pes planus, a low back disability and a left knee disability, for additional development. In an October 2020 rating decision, service connection was granted for erectile dysfunction, bilateral pes planus, a low back disability and a left knee disability; as such, these issues are no longer on appeal. Additionally, the Board notes that the issue of entitlement to an initial increased rating for chronic constipation was remanded in August 2019 for the RO to issue a statement of the case. A statement of the case was issue in April 2020; however, to date, the Veteran has not completed a VA Form 9 substantive appeal in response to the April 2020 statement of the case. Therefore, this issue is not before the Board at this time. Entitlement to service connection for obstructive sleep apnea. The Veteran seeks entitlement to service connection for obstructive sleep apnea. As service connection for sleep apnea is being granted on a secondary basis based on causation, there is no need to discuss entitlement to service connection on a direct basis or any other basis. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) recently held in Walsh v. Wilkie, 32 Vet. App. 300 (2020), that obesity as an “intermediate step” in a causal chain for service connection can be established on either a causal or aggravation basis. The Court also concluded that General Counsel Precedent Opinion 1-2017, which determined that obesity can constitute an “intermediate step” between a service-connected disability and a disability that may be service connected on a secondary basis, not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran has a current diagnosis of obstructive sleep apnea. See October 2020 VA examination. The key question at issue is whether the Veteran’s sleep apnea is caused or aggravated beyond its natural progression by the Veteran’s service-connected disabilities. The Veteran was afforded a VA examination in July 2014, at which time the examiner opined that the Veteran’s sleep apnea was less likely than not due to service. The examiner noted the Veteran has several risk factors, including age, gender, Mallampati type 4 airway, and obesity; environmental exposures are not known to cause sleep apnea. No opinion regarding secondary service connection was offered, and there was no discussion relating to the Veteran’s lay statements regarding onset of symptoms. A private medical opinion was received in February 2019. The physician stated that there appears to be continuity of symptoms supported by lay statements. The physician noted that the statement from the Veteran’s fellow servicemember, M.O., is especially helpful as they served together and were roommates together at a homeless shelter after service. The physician noted that this indicates continuity of the complaint and also the fact that he was suffering from this the year following service. The physician also noted that there is a lay statement from the Veteran’s wife, T.S., that states the Veteran would awake in the middle of the night covered in sweat and had been snoring loudly and would stop breathing. Continuing, the physician noted that the Veteran’s wife stated sometimes the Veteran simply had problems breathing while sleeping and he would ask her to massage his joints because of pain, primarily in the right knee and ankle. The physician noted that the Veteran’s wife indicated the Veteran did not have these problems prior to deployment. The physician also noted that the Veteran has multiple joint problems, which have contributed to weight gain; he weighed 215 pounds at separation and now weighs 239 pounds. The examiner then opined that the Veteran has obstructive sleep apnea now as a result of weight gain that was caused by joint problems. A VA medical opinion was obtained in October 2020. The examiner opined that the Veteran’s sleep apnea was less likely than not due to service, stating that the Veteran’s service treatment records do not demonstrate any complaints or treatment during service. The examiner then stated that while obesity represents a potential etiology of sleep apnea, and while musculoskeletal injuries can contribute to weight gain, weight gain is multifactorial and can be prevented via nonweight bearing exercise and dietary discretion, which are not influenced by the Veteran’s disabilities. Neither the July 2014 or October 2020 VA examiners noted or discussed the multiple lay statements of record submitted by fellow servicemembers, friends, and family members of the Veteran regarding his symptoms of sleep apnea. Lay persons are competent to report and identify when the Veteran snored, experienced daytime exhaustion, and/or exhibited erratic sleep patterns after service, as they are symptoms capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Resolving all doubt in the Veteran’s favor, based on the available medical and lay evidence, the Board finds that the Veteran’s current obstructive sleep apnea is caused by the Veteran’s service-connected right knee and right ankle disabilities, based on the intermediate step of obesity. The Court of Appeals for Veterans Claims reiterated in Wise that “[b]y requiring only an ‘approximate balance of positive and negative evidence’ to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107 (b), the nation, ‘in recognition of our debt to our Veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. As such, the Veteran’s service-connection claim for obstructive sleep apnea, on a secondary basis, is granted. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.