Citation Nr: 21024151 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-34 657 DATE: April 22, 2021 ORDER Service connection for sleep apnea, to include as secondary to pes planus, sinusitis, and/or rhinitis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s sleep apnea began during active service, is otherwise causally or etiologically related to service, nor is it related to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 February 1977 to November 1977. He currently has a schedular disability rating/combined disability rating of 100 percent. In July 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service connection for sleep apnea The Veteran’s post-service medical records reveal that he has been diagnosed with obstructive sleep apnea. The Veteran’s primary theory of entitlement to service connection is that he developed sleep apnea secondary to another medical condition, specifically sinusitis, rhinitis, or pes planus. Regarding his pes planus claim, the Veteran argues that this service-connected disability resulted in his becoming obese; and that his obesity contributed to the development of his sleep apnea. Under current legal authority, obesity is not a disability for VA compensation purposes. Marcelino v. Shulkin, 29 Vet. App. 155 (2018). However, it may be considered in certain cases as an intermediate step in secondary service connection, Given the Veteran’s primary theory for service connection, the Board begins it analysis with an evaluation for secondary service connection rather than service connection on a direct basis. 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). Service connection may also be granted on the basis that a disability developed proximately due to or the result of a service-connected disease or injury, or in instances where a nonservice-connected disability is aggravated by a service-connected disability. Turning to secondary service connection, the Board initially observes that the Veteran is not service-connected for allergic rhinitis or chronic sinusitis. Therefore, neither of these disorders can be the basis upon which service connection for sleep apnea can be granted. Even if the Veteran were service-connected for either medical condition, the Board observes that the claims file contains a VA medical opinion in which a medical doctor opined that it is less likely as not that the Veteran’s sleep apnea developed secondary to or has been aggravated by his sinusitis or rhinitis. In this regard, the doctor stated that obstructive sleep apnea is secondary to dynamic narrowing of the upper airway, such as closure of the oral pharynx during sleep. Such a narrowing is not caused by an ear, nose, or throat condition. The Veteran is service-connected for bilateral pes planus. The Veteran’s counsel has argued that service connection for sleep apnea should be granted on the theory that the Veteran’s pes planus caused or contributed to the Veteran becoming obese; and that the Veteran’s obesity is a known factor associated with the development of sleep apnea. In this regard, the Veteran submitted an affidavit in March 2020 in which he asserted that he had sleep apnea due to his pes planus. Specifically, he alleges that his feet hurt all day, every day; and that he can hardly walk or stand for a long time. He said that it feels like something is stabbing in his feet 100 percent of the time; and that the skin on his feet becomes so hard “its like a fish scale” that he needs to keep lotion on them. He states that he must use special pads in his shoes to make his feet somewhat comfortable. He also reports that because of his foot pain, he cannot be active anymore or exercise, which has resulted in his becoming obese at 210 pounds. He also asserts that he cannot lose weight because it hurts too much to move. Lastly, he has stated that he cannot breathe because of his weight gain despite having a CPAP machine. During a June 2016 VA Foot Conditions Disability benefits Questionnaire examination, the Veteran reported that he did not receive any treatment for his pes planus. The Board’s review of the Veteran’s post-service medical records failed to reveal any specific complaints of/treatment for bilateral pes planus other than one record of the Veteran reporting persistent pain in the heel region with radiation to the arch of the feet for the previous few months and being casted for custom orthotics to relieve pain in his feet while walking. See January 2016 and February 2016 medical records. The Veteran’s post-service medical records consistently reflect the Veteran’s complaints of having neuropathy of his hands, feet, and legs. They also reveal that the Veteran is legally blind because of diabetic retinopathy and glaucoma and stopped driving in January 2010 because of his vision. The Veteran has been noted to be ambulatory, sometimes with the use of a cane, walker, wheelchair, or scooter, with difficulties noted with steps and curbs because of vision. A comparison of the Veteran’s March 2020 statement and post-service medical records reveal the Veteran’s foot disability has apparently particularly worsened within the past three years since the Veteran reported in June 2016 that he walked everywhere (most likely because he could not drive) and that he liked to walk in the park during the day. See February 2018 mental health visit notes. Medical evidence reveals that the Veteran’s weight has consistently increased with age; and several records reflect the Veteran’s statements to his medical care providers that he believed his weight gain was due to his use of insulin and his diabetes. See, e.g., April 2011, March 2012, and May 2018 medical records. On several occasions, the Veteran was counseled on the importance of weight management in diabetes control. During these discussions, the Veteran’s medical providers wrote that he was not interested in a weight management program. See, e.g., September 2015, December 2017, and July 2019 medical records. The Board also notes at least one medical record in which the Veteran reported a loss of drive to do things because of his depression. August 2010 medical records. Turning to medical nexus evidence, the Board initially observes that a review of the claims file fails to reveal any medical nexus opinions supportive of the Veteran’s claim on either a secondary or direct basis. The Veteran was afforded a VA examination in relation to his sleep apnea claim in October 2019. See October 2019 sleep apnea disability benefits questionnaire. Medical opinions dated in October 2019, September 2020, December 2020, and January 2021 related to sleep apnea were subsequently associated with the claims file. Notably, all four medical reports reflect negative nexus opinions. The Veteran’s attorney argued error in that the October 2019 and September 2020 medical opinions were inadequate. As such, the Board focuses on the December 2020 and January 2021 addendum medical opinions as they are the most thorough, recent, and unobjected to medical evidence. Specifically, a December 2020 medical opinion from a medical doctor reflects review of the Veteran’s claims file, to include citation to medical evidence. The doctor providing the opinion found that it was less likely than not that the Veteran’s sleep apnea developed secondary to his service-connected pes planus. In this regard, he stated that there is no medical rationale correlating the diagnosis of pes planus with the development of sleep apnea. According to the January 2021 medical doctor, it was less likely than not that the Veteran’s obesity contributed to the development of his sleep apnea. In this regard, the doctor stated that the Veteran’s weight gain was due to taking insulin. She found no evidence of pes planus on x-ray at the time of the Veteran’s diagnosis of sleep apnea and stated that the Veteran’s actual ability to walk was not insinuated by the records as being affected by his pes planus. She noted that medical records in the file were silent for chronic foot pain due to pes planus, but rather noted the Veteran’s foot pain and numbness as being due to his nonservice-connected diabetic neuropathy. Evidence of the Veteran’s ability to walk, contained in his earlier post-service medical records, also weighed in favor of finding that the Veteran’s weight gain was not caused by pes planus. Therefore, the doctor ultimately opined that the Veteran’s obesity was less likely than not caused by his pes planus. The Board finds the December 2020 and January 2021 medical opinions to be credible, persuasive, and unrebutted. The Board assigns the medical opinions more probative weight than the Veteran’s lay statement that he believes his pes planus contributed to his obesity which then contributed to the development of sleep apnea. The Veteran’s opinion alone does not qualify as favorable nexus evidence upon which his claim can be granted as he has not been shown to have the required medical expertise to make such a conclusion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Considering the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s sleep apnea claim on a secondary basis. As to the issue of direct service connection, the Veteran’s service treatment records do not reveal any complaints of/treatment for/or diagnosis of sleep apnea. The records also do not reflect any symptomatology or ailments that can be associated with a diagnosis of sleep apnea. The Veteran has not contended that his service records are incomplete or missing information. He testified, however, during his July 2017 BVA hearing that he experienced symptoms related to sleep apnea during his military service, which continued after separation. Specifically, he stated that he began to snore while on active duty and had difficulty breathing while sleeping. He thought that his sleeping and sinus issues may have been related to the various flora and fauna to which he was exposed during service. Post-service medical records reveal that the Veteran was not diagnosed with sleep apnea until approximately 2012, many years after his discharge from service. In medical opinions dated in December 2020 and January 2021, VA medical doctors noted that while the Veteran reported symptoms in service he associated with sleep apnea, the evidence did not support a finding of any continuity of symptomatology that existed from the time of the Veteran’s discharge from service until his sleep apnea diagnosis. Additionally, it was noted that because the Veteran was never diagnosed with a chronic rhinitis or sinusitis condition in service, it was less likely that his sleep apnea was incurred in or caused by loud snoring during sleep in service. Lastly, the January 2021 doctor noted that loud snoring was not diagnostic of sleep apnea or an inability to breathe properly. Thus, the Veteran’s testimony was not diagnostic of sleep apnea. The Board finds the VA medical opinions pertaining to direct service connection to be credible, persuasive, and unrebutted. In making these findings, the Board notes again that the Veteran is competent to report that he suffered from snoring in service and that he felt an “inability to breath properly” that he related to early on-set obstructive sleep apnea. However, his opinion alone does not qualify as favorable nexus evidence upon which his claim can be granted. See Jandreau v. Nicholson, supra. Given the evidence discussed above, viewed within the context of the entire record, the Board finds that service connection for sleep apnea is not warranted on either a secondary or direct basis. Therefore, the appeal must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talpins, Patricia 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.