Citation Nr: 21020886 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-49 190 DATE: April 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected bipolar disorder, is denied. FINDING OF FACT The Veteran’s OSA is not caused or aggravated by a service-connected disability, and is not otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for OSA have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to October 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in July 2019, where it was remanded for additional development. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2019. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Service Connection for OSA The Veteran has current OSA, confirmed by a sleep study conducted in November 2008, that he asserts is related to his military service or a service-connected disability. For the reasons that follow, the Board finds that service connection is not warranted. Generally, to establish service connection, a claimant must 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service treatment records (STRs) show no complaints, diagnosis, or treatment indicative of OSA. As the Veteran reported other ailments during service, and as problems with sleep or fatigue are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with such during service the Board would expect that he would have reported them to medical professionals. The Board notes that the Veteran’s was discharged due to what is now his service-connected acquired psychiatric disorder. While medical records dated near-in-time to his discharge in 1978 note psychiatric problems, including a separation physical examination, no record suggests OSA-related sleep problems. OSA is not shown by medical evidence until approximately his 2008 diagnosis, decades after the Veteran’s separation from service. Regarding onset of symptoms related to OSA, during a February 2020 VA examination the Veteran reported an onset of symptomology just prior to his diagnosis. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s STR’s and post-service medical records, as well as his own statements that his symptoms began closer-in-time to his 2008 diagnosis The RO denied the Veteran’s claim essentially based on the above – that the Veteran’s STRs and post-service treatment records are negative for OSA until 2008. The Board agrees that direct service connection is not warranted as the most probative evidence does not indicate in-service onset of symptoms or any relationship between the OSA diagnosed decades after service and an in-service event, injury, or disease. The Veteran has also asserted, however, including during his hearing before the undersigned, that the medication prescribed to treat his service-connected bipolar disorder caused obesity which led to his eventual OSA. A May 2018 private treatment record notes the Veteran reporting an increasingly difficult time losing weight since starting psychotropic medications in 2001, which led to weight gain up to 400 pounds. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran’s obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran’s service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 32 Vet. App. at 306-7. As the record was negative at the time for a medical opinion that addressed the above theory of entitlement, the Board remanded the claim in July 2019 for a VA examination, which was afforded in February 2020. After reviewing the pertinent medical history and performing an examination, the examiner opined that it is less likely than not that the Veteran’s OSA was caused or aggravated by his military service or service-connected bipolar disorder. In support of this conclusion, the examiner explained that bipolar disorder and obstructive sleep apnea, by definition, are different disease entities with different pathophysiological process unrelated to each other according to medical literature. As his OSA onset in 2008, it is less likely that his OSA is related to his in-service onset of his bipolar disorder. Regarding the Veteran’s claim that his OSA is the result of medication used to treat his bipolar disorder, the examiner noted that the Veteran was already obese at the time he began taking earlier, first-generation medication for his bipolar disorder in 2001. Medical literature, the examiner continued, does not support a correlation between these particular antipsychotic medications at the time and being obese. Rather, atypical, second-generation antipsychotics are associated with obesity and other components of metabolic syndrome, which the Veteran was not taking at the time. Although obesity and bipolar disorder can coexist, this Veteran’s OSA has followed a natural progression. The Board finds the above opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. While the Board acknowledges the private opinion provided by the Veteran’s private physician in September 2019 that the use of antipsychotics has led to the Veteran’s obesity and, as a consequence, his OSA, no rationale was provided. The Board therefore affords more probative weight to the VA examiner’s opinion. The Board has considered the Veteran’s statements, to include his assertions that his OSA is related to his military service or a service-connected disability. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., fatigue and sleep disturbances; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.