Citation Nr: 21022857 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-41 908 DATE: April 19, 2021 ORDER Entitlement to service connection for sleep apnea, including as secondary to the Veteran’s service-connected psychiatric disorder and/or diabetes mellitus is denied. FINDINGS OF FACT 1. The medical evidence of record does not provide a basis to find a link between the Veteran’s service-connected disabilities and his obesity. 2. The Veteran’s sleep apnea is not secondary to his service-connected psychiatric disorder and/or diabetes mellitus, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, including as secondary to service-connected psychiatric disability and diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. On his October 2014 VA Form 9, the Veteran requested a Board hearing at his local VA office. In January 2015, the Veteran requested to cancel the hearing request. As such, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704(d). This matter was previously before the Board in September 2018, October 2019, and September 2020, wherein the Board remanded for medical opinions. The matter has returned to the Board for adjudication. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. The Veteran contends that his sleep apnea is related to his active duty service. The Veteran has also raised the issue of secondary service connection with regard to his psychiatric disability, diabetes mellitus, and resulting obesity. The Board will address direct service connection, as well as whether the Veteran’s obstructive sleep apnea is proximately due to or the result of, or is aggravated beyond its natural progression by his service-connected disabilities. The Board concludes that, while the Veteran has a diagnosis of obstructive sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, to include as secondary to his service-connected disabilities. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran’s service treatment records contain no diagnosis or indication of sleep apnea or any sleep-related disorder. At his separation examination in 1972, he noted that his health was good, and there was no complaint of any sleep-related issue. The evidence of record shows the Veteran was first diagnosed with sleep apnea in December 2006, more than thirty years following his separation from active service. In May 2011, the Veteran stated that he has trouble sleeping through the night and has nightmares that wake him. At the time of his April 2012 notice of disagreement, the Veteran reported having sleep issues since he was released from the Army. He also indicated that he had no history of sleep issues prior to Vietnam. The Veteran’s wife submitted a statement in October 2014 stating that the Veteran has difficulty falling asleep and has flashbacks and nightmares. The Veteran submitted an additional statement in October 2014 noting that his sleep study in 2006 was done to determine what was causing him to have sleep problems and nightmares, and that it was a result of issues he experienced after his diabetes diagnosis. In February 2019, the Veteran was afforded a VA examination, during which the diagnosis of sleep apnea was confirmed. The examiner stated it was less likely than not that the Veteran’s sleep apnea was incurred in or caused by an in-service injury, event, or disease, as there was no evidence that sleep apnea onset in or was related to service. While the examiner noted the risk factors for the development of sleep apnea, the examiner did not explain how those risk factors applied to this Veteran. The examiner further opined that sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected psychiatric disability, stating that there is no evidence in the literature that a psychiatric disability can cause one to develop sleep apnea. However, the examiner did not address if the Veteran’s psychiatric disability aggravated the Veteran’s sleep apnea. As such, an opinion as to aggravation was requested in the Board’s October 2019 remand. The December 2019 VA examiner opined that the Veteran’s sleep apnea is not aggravated by his service-connected psychiatric disability. The rationale was that the Veteran’s psychiatric disability affects the rapid eye movement (REM) phase of sleep, while sleep apnea occurs during the deep sleep before the REM stage occurs. She noted that these two conditions are different processes, and further that psychiatric medications do not typically contribute to sleep apnea. She concluded that there was no evidence of worsening of his sleep apnea, and no study to support a link between a psychiatric disability and sleep apnea. The Board remanded the matter for an addendum opinion to address service connection and the Veteran’s lay statements indicating symptomology during service, as well as whether the Veteran’s sleep apnea was at least as likely as not caused by, or aggravated by his service-connected disabilities, to include his psychiatric disability and diabetes mellitus and related diabetic complications. Additionally, the Board requested the examiner address whether the Veteran’s service-connected disabilities caused him to become obese either in whole or in part, and then requested that the examiner opine whether obesity was a substantial factor in causing the Veteran’s sleep apnea, and whether his sleep apnea would not have occurred but for the obesity caused by his service-connected disabilities. While the United States Court of Appeals for Veterans Claims held in Marcelino v. Shulkin, 6 Vet. App. Jan. 23, 2018, that “there is currently no provision in the rating schedule to compensate for obesity,” VA’s Office of General Counsel (OGC) issued an opinion that a claim for secondary service connection may be based on obesity 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). VAOPGCPREC 1-2017. This “intermediate step” under 38 C.F.R. § 3.310(a) equates to an inquiry into proximate cause requiring a 3-step analysis, namely of (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. The November 2020 examiner provided an opinion regarding the Veteran’s sleep apnea and concluded the Veteran’s sleep apnea was less likely than not caused by his service. She concluded that while the Veteran had reported symptoms since service, a nexus could still not be established, given that he had no diagnosis of sleep apnea during active duty, and was not diagnosed until 2006. The examiner specifically noted that she had considered the Veteran’s reports of symptoms, but that his reports did not establish a nexus between his symptoms and his service. As to secondary service connection, the examiner noted that sleep apnea is a mechanical problem that blocks the airway, diagnosed by sleep study, while a psychiatric disorder can cause insomnia or nightmares. However, there is no established etiological basis for obstructive sleep apnea due to psychiatric disorders. The examiner concluded there was no nexus between sleep apnea and the Veteran’s service-connected disabilities, nor any objective medical evidence confirming aggravation of the Veteran’s sleep apnea beyond its normal progression by his psychiatric disability, or diabetes and its related complications. The opinion did not address obesity. In a January 2021 addendum opinion, the examiner noted that obstructive sleep apnea, psychiatric disabilities and diabetes are all separate entities and there is a lack of medical evidence supporting a conclusion that the conditions are medically related. She stated that diabetes is a disease that affects how the body uses blood sugar, wherein the body’s own immune system attacks and destroys insulin-producing cells in the pancreas, leading to a buildup of sugar in the bloodstream. The examiner also addressed whether any of the Veteran’s service-connected disabilities caused obesity. The examiner noted that a December 2013 treatment note indicated that the Veteran reported he had gradually gained weight over the years, and he noted that it was due to eating too much, poor food choices, and not getting enough physical activity. The examiner noted that while psychiatric disorders and diabetes can limit an individual’s desire to exercise or maintain a healthy diet, this does not necessarily lead to weight gain. The examiner noted that there was not sufficient, objective medical evidence in the available medical records that confirmed that the Veteran’s obesity is due to or the result of his service-connected disabilities, to include medications prescribed as treatment, and therefore no medical nexus between the Veteran’s obesity and his sleep apnea was found. The examiner noted that the available medical records did not note any further medical evaluations related to sleep apnea. Therefore, it was determined that there was no nexus between the Veteran’s diabetes and a worsening of sleep apnea. The Board recognizes the Veteran believes his sleep apnea is causally connected to his active service, or, in the alternative, proximately due to, the result of, or being aggravated beyond its natural progression by his service-connected disabilities. He has expressed that he believes his sleep-related issues are connected to his sleep apnea. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. While his wife is also competent to describe the Veteran’s symptoms related to sleep, she is not competent to provide a nexus opinion. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran and his wife in this case because the record does not show that they have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board finds that the November 2020 opinion and January 2021 addendum opinion are highly probative because the examiner provided a detailed rationale based on the Veteran’s sleep study, medical history, and available medical information. Prejean v. West, 13 Vet. App. at 448-9 (2000). The examiner’s opinions were not based solely on a lack of contemporaneous medical records but considered all of the evidence of record. The opinions of record are supported by a well-reasoned rationale and are consistent with the other evidence as addressed throughout the Veteran’s appeal. Based upon the foregoing, the Board finds there is no basis to find a link between the Veteran’s service-connected diabetes mellitus and his obesity and therefore no basis to find that the Veteran’s obesity is an “intermediate step” between his diabetes mellitus and his obstructive sleep apnea so as to permit service connection on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. Each potential pathway to service connection has been addressed in multiple VA examinations, opinions, and Board decisions. The preponderance of the evidence continues to show that the claimed condition of sleep apnea is not due to or caused by service, and did not result from the Veteran’s service-connected conditions. Accordingly, this claim for service connection for obstructive sleep apnea, including as secondary to the Veteran’s service-connected disabilities, must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, Associate 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.