Citation Nr: 21025041 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-24 787 DATE: April 27, 2021 ORDER Service connection for sleep apnea, on the basis of substitution, is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s service-connected depression aggravated his obesity. The Veteran’s sleep apnea had clearly progressed beyond its natural progression due to his 60-pound weight gain between 2005 and 2019. But for the obesity, the Veteran’s sleep apnea would not have occurred. CONCLUSION OF LAW The criteria for service connection for sleep apnea, on the basis of substitution, have been met. 38 U.S.C. § 1110, 5121A; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1967 to April 1970. He died in March 2019. The appellant is the Veteran’s surviving spouse. In April 2019, the appellant submitted a request for substitution, and in June 2019 the RO granted the appellant’s request to be substituted as claimant in place of the Veteran. See 38 U.S. C. § 5121A. The issue was previously remanded by the Board for further development in both January and June 2020. The development is completed, and the appeal has returned to the Board for further adjudication. Service Connection for Sleep Apnea The theory has been asserted that the Veteran’s sleep apnea was caused or aggravated by his obesity, which was caused or aggravated by his service-connected depressive disorder with anxiety disorder. Obesity, for purposes of service connection, is not considered a disease or disability for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110 and 1131, or for purposes of establishing secondary service connection under 38 C.F.R. § 3.310. Obesity, however, may qualify as an “intermediate step” between a service-connected disability and a current disability where a claimant establishes that the obesity was caused by a service-connected disability and caused his or her the current disability. VAOPGCPREC 1-2017. Where obesity is asserted to be an intermediate step, the evidence must show that the service-connected disability “caused the Veteran to become obese,” that the obesity caused by the service-connected disability “was a substantial factor in causing” the current disability, and that the current disability “would not have occurred but for” the obesity caused by the service-connected disability. Id. In Walsh v. Wilkie, the Court further held, that the Board needs to consider the obesity-intermediate step theorem predicated on 38 C.F.R. § 3.310 (aggravation) also where appropriate. In particular, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the Veteran to become obese/aggravated the Veteran’s obesity); (2) if so, whether the (obesity/aggravation of 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/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Treatment records reflect reports that the Veteran was diagnosed with sleep apnea via a private sleep study in 1995. A notation in the Veteran’s private treatment records from January 2005, provides that as the Veteran lost weight his sleep apnea resolved. In a VA polysomnography report from July 2012, it was relayed that the Veteran had been treated with a CPAP for 16 years for his sleep apnea. It was also noted that weight gain has been associated with nasal congestion, air leaks, and severe hypersomnolence. The Veteran’s weight was reported as 260 pounds and his BMI was 37.8. A diagnosis was rendered of severe obstructive sleep apnea syndrome with moderately severe cyclic hypoxemia, that is improved with CPAP/bilevel PAP. In March 2014, the Veteran’s VA physician provided a statement attributing several of the Veteran’s conditions to military service. The physician provided a chain reaction of disorders that started with the Veteran’s service-connected non-Hodgkin’s lymphoma and ended with his service-connected depression, which was followed by weight gain, and obstructive sleep apnea. Specifically, the physician wrote the “lymphoma required a liver transplant and chemotherapy. The chemotherapy caused the neuropathy. The liver transplant caused his liver failure and necessitated immunosuppressive therapy. The immunosuppressive therapy caused the autoimmune disorder. The immunosuppressive therapy caused his squamous cell cancer. The squamous cell skin cancer required a radical surgery. This surgery caused the face indentation. All the above conditions caused [the Veteran] to feel depressed and he gained weight causing his obstructive sleep apnea.” The physician finished the statement by stating that he strongly believed that the Veteran should be service-connected for all of the above. In August 2020, a VA examiner rendered a medical opinion pertaining to the theory that the Veteran’s obesity was an intermediate step between his service-connected depression and his sleep apnea. The examiner found that it was less likely than not that the Veteran’s service-connected disabilities, to specifically include depression, caused the Veteran to become obese or aggravated his obesity. The examiner further stated that the obesity that resulted from or was aggravated by the service-connected disabilities was not a substantial factor in causing sleep apnea. However, the examiner also reported that the Veteran’s sleep apnea would not have occurred, but for the obesity caused by or aggravated by the service-connected disabilities. The examiner began his rationale for the above findings by stating that the Veteran’s sleep apnea had clearly progressed beyond its natural progression due to his 60-pound weight gain between 2005 and 2019, as was indicated by worsening hypersomnolence, the need for supplemental oxygen, and documented carbon dioxide retention. The examiner then noted that depression and anxiety are associated with weight gain, although a direct causal relationship is not documented in the medical literature. The Veteran’s weight gain was at least as likely as not multifactorial, with his mental health disabilities playing only a small part in the weight gain. The major cause of the Veteran’s weight gain and obesity was at least as likely as not due to excess intake of calories, especially simple carbohydrates. While depression and anxiety at least as likely as not contributed to the obesity and weight gain, the Veteran was obese in 2005, at the time he was diagnosed with depression and anxiety. In addition, his depression and anxiety at least as likely played a limited role in his weight gain, compared with the major driving factor of excess caloric intake. The August 2020 VA examiner’s rationale provides that the Veteran’s service-connected depression at least as likely as not contributed to his weight gain, albeit a small amount. Even if it is a small amount, aggravation under 38 C.F.R. § 3.310 is any increase in disability. The examiner also stated that the Veteran’s sleep apnea had clearly progressed beyond its natural progression due to his 60 pound weight gain between 2005 and 2019, as was indicated by worsening hypersomnolence, the need for supplemental oxygen, and documented carbon dioxide retention. This may be considered a substantial factor. Additionally, it was noted that the Veteran’s sleep apnea would not have occurred, but for the obesity. As such, the Board finds that affirmative answers have been rendered to the questions that need to be answered in the affirmative for obesity to be considered an “intermediate step.” In addition, the opinion from the Veteran’s VA physician, while not detailed on how the Veteran’s depression led to weight gain that led to sleep apnea, nevertheless supports the above answers as being affirmative. As such, when the evidence is viewed as a whole, and when the Veteran, as well as the appellant, are granted the benefit of the doubt, service connection for sleep apnea, on the basis of substitution, is warranted. Accordingly, service connection for sleep apnea, on the basis of substitution, is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.