Citation Nr: 21025457 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-07 675 DATE: April 28, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The preponderance of the probative evidence does not demonstrate that the Veteran’s sleep apnea was incurred in or is related to service or that it has been caused or aggravated by a service-connected disability. 2. The preponderance of the evidence is against a finding that the Veteran’s obesity is an “intermediate step” between his service-connected disabilities and his current obstructive sleep apnea because the Veteran’s service-connected disabilities are not a proximate cause of the Veteran’s obesity and did not aggravate the Veteran’s obesity. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2000 to August 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. In June 2020, the Board found VA examinations did not substantially comply with the November 2019 remand directives and remanded the matter again for further development. The case has now returned to the Board for review. Entitlement to Service Connection for Sleep Apnea The Veteran contends that he has sleep apnea that is directly related to his active service or is secondary to his service-connected disabilities. See March 2013 notice of Disagreement (NOD). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be awarded on secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). However, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be connected on a secondary basis. To meet these criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese, that obesity was a substantial factor in causing secondary disability, and that the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). The Board finds that the Veteran has a current sleep apnea disorder; the first Shedden and Wallin element, that of a current disability, is thus met. See July 2011 sleep study. While the Veteran has a current disability, the preponderance of the evidence does not demonstrate that this disability was incurred in service or is secondary to a service-connected disability. As noted above, the Veteran asserts he has sleep apnea that is directly related to his active service or is secondary to his service-connected disabilities. See March 2013 Notice of Disagreement (NOD). Specifically, the Veteran asserts that his sleep apnea onset occurred during service, that there are signs and symptoms of his sleep apnea during service, which have continued since service, and further that the results of his 2006 in-service sleep study, which did not support a sleep apnea diagnosis, are invalid. May 2006 medical treatment records show the Veteran was seen for tremors. At that time the Veteran also mentioned his insomnia and his wife’s account that the wakes two to three times a night, appearing to catch his breath. The examiner gave a diagnosis of insomnia, and referred the Veteran referred for a sleep study to determine whether sleep apnea was present. July 2006 medical treatment records show a diagnosis of insomnia due to poor sleep schedule that may have been induced by an odd schedule while the Veteran was deployed. At that that time, sleep hygiene was discussed and weight loss was recommended. An August 2006 sleep study noted 11 obstructive hypopneas over 349 minutes of sleep. The clinical impression found an apnea and hypopnea index of 1.6 with mild to moderate snoring. At that time, the diagnosis found no evidence of obstructive sleep apnea. The Board has considered the Veteran's assertions that his sleep apnea is related to his period of active service. While the Veteran is competent to report having experienced symptoms of difficulty sleeping, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), he is not competent to provide a diagnosis in this case or determine that his symptoms were manifestations of his currently diagnosed sleep apnea, as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no competent and probative medical evidence to suggest that the Veteran's sleep apnea began in or is otherwise etiologically related to his time in service. Thus, the criteria for service connection for sleep apnea on a direct basis have not been met. The preponderance of the evidence weighs against the Veteran's claim, and service connection for sleep apnea on a direct basis must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Regarding the claim on a secondary basis, the Veteran asserts that his service-connected bilateral lower extremity disabilities, asserted as neurological in nature, required the use of medication which caused weight gain, and that other service-connected disabilities restricted his ability to exercise, causing weight gain. He asserts that his obesity, which continued to increase in severity after service due to his service-connected disabilities caused or aggravated his sleep apnea. The Veteran was diagnosed with severe obstructive sleep apnea approximately 5 years following his discharge from service based on the results of a July 2011 sleep study. September 2011 medical treatment records show the Veteran had a recorded BMI of 48.1 reflecting morbid obesity. To answer the question of secondary service-connection, the Board must determine whether the Veteran’s obesity is caused by the Veteran’s service-connected disabilities. June 2004 service treatment records note the Veteran’s BMI was 30.35 The Veteran had a VA examination for sleep apnea in February 2012. The February 2012 VA examiner opined that the Veteran’s sleep apnea is not related to active service, but mostly likely caused by his morbid obesity, noting the Veteran gained at least 84 pounds after separation from service. In November 2018, the Board found that the February 2012 VA examiner did not adequately address the issue of secondary service connection because he did not opine as to whether the Veteran’s sleep apnea was aggravated by his service connected disabilities or provide separate findings and rationales relating to causation and aggravations and remanded the appeal for a new VA examination and opinions. see El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such little probative value is accorded to this examination. The Veteran was provided with a VA examination for sleep apnea in November 2019. The November 2019 VA examiner opined that the Veteran’s sleep apnea did not have onset during active service and is not etiologically related to his service, and that his sleep apnea is not proximately due to or the result of his service connected disabilities, or aggravated by his service-connected disabilities. The VA examiner noted that the Veteran’s greatest risk factor for his sleep apnea is his obesity. The November 2019 VA examiner noted that the Veteran’s primary physician found in 2008 that the Veteran continued to gain weight because he does not exercise or diet. Thus, the primary physician clearly found that the Veteran’s obesity was due, in part, to his failure to exercise. As noted above, the Veteran contends that his weight gain is due to his difficulty exercising due to his service-connected disabilities, which are service connected from the day after the Veteran’s discharge from active duty. In June 2020, the Board again remanded the claim finding this opinion inadequate. In an August 2020 VA examination, the examiner opined it is less likely than not that the Veteran’s service-connected disabilities caused the Veteran to become obese, including the use of any medications prescribed for his service-connected neurological disability. The examiner stated that factors that contribute to obesity are dietary, neuroendocrine, behavioral, and genetic. The examiner stated obesity is primarily a condition of eating too many calories and that the actual cause of the Veteran’s obesity cannot be selected from multiple potential causes without resort to mere speculation. With regard to June 2008 primary care physician, who noted that the there was a causal relationship between the Veteran’s weight gain and his failure to exercise, as well as the Veteran’s lay statements of record that he gained weight due to his difficulty exercising due to his service-connected disabilities, the examiner stated the scientific evidence does support that physical activity can be an effective lifestyle behavior to prevent or minimize weight gain in adults. However, this does not mean that physical activity is the only way to prevent weight gain, or that his obesity would not have occurred but for his service-connected conditions. A January 2021 VA examination concurred with the opinion of the September 2020 VA examiner finding it less likely as not that the Veteran’s service-connected disabilities caused the Veteran to become obese, including the use of any medications prescribed for his service-connected neurological disability. According to the January 2021 examiner, there is nothing innate about having pain that causes obesity and there is nothing innate in his service-connected conditions that causes obesity—there is no pathophysiologic mechanism for the claim. Furthermore, the examiner stated the Veteran’s medical treatment record does not evidence that his service-connected disabilities prohibit him from exercising or caused him to gain weight and that the Veteran had been counseled by his treatment team on the need for weight loss and regular exercise multiple occasions. According to the January 2021 examiner, obesity is not simply the result of inactivity. Rather, the examiner stated the primary etiology of obesity is over-eating, obesity, even in the setting of a sedentary existence could be avoided, and if one’s exertional activity is limited by a musculoskeletal condition, one would not necessarily have to suffer from unwanted weight gain. While high impact aerobic exercise might be precluded, one could burn calories with low-impact workouts. Moreover, the examiner noted the Veteran’s records clearly evidence that the Veteran has been repeatedly counseled on his diet and caloric intake, offered consults for nutritional counseling and weight loss strategies on numerous occasions, but refused referral. In a post-remand brief, the Veteran contended that his weight gain could be attributable to prescription medication. The January 2021 VA examination, however, also addressed this possibility and found an absence of cause of weight gain upon review of the Veteran’s medications. The examiner noted that the record shows the Veteran was first prescribed atenolol, the medication referenced in the Veteran’s brief, for tremor and blood pressure in March 2008 and last filled the prescription in July 2008. The medication has not been filled since. In conclusion, examiner found the Veteran’s obesity is because of unhealthy eating behaviors, lifestyle choices, and not taking appropriate responsibility for his own health. The Veteran also contends his obstructive sleep apnea may be aggravated by PTSD, citing a medical treatise. However, the Veteran is not service-connected for PTSD, therefore secondary service connection cannot be granted on that basis. There is no other competent opinion of record establishing that the Veteran’s service-connected disabilities caused or aggravated his obesity. The Board acknowledges the lay statements from the Veteran concerning whether his obesity was caused by his lower extremity disabilities. In this regard, he is competent to report the symptoms that he has experienced and history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). However, he has not been shown to be capable of making medical conclusions, especially as to a complex medical opinion regarding the etiology of obesity as it relates to the Veteran’s service-connected disabilities. Determining the cause of obesity is complex, requiring medical knowledge or training that the Veteran is not shown to possess. Even if the Veteran were considered competent to offer such an opinion, the Board finds that the well-reasoned opinions of the VA examiners outweighs the contentions of the Veteran as to this point. In this case, as to the issue of whether the Veteran’s sleep apnea is related to his obesity which is aggravated by, proximately due to, or the result of a service-connected disabilities, the Board finds the January 2021 VA medical opinion is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and prior physical evaluation of the Veteran. Furthermore, the January 2021 examiner provided a complete and thorough rationale in support of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Ultimately, for the reasons described above, the Board determines that the most probative, competent evidence of record indicates that the Veteran’s obesity was not caused or aggravated by his service-connected disabilities. There is no competent evidence establishing obesity as an “intermediate step” between his service-connected disabilities and his claimed sleep apnea. Based on the evidence of record, including the evidence described above, the Board finds the preponderance of the evidence is against service connection for obstructive sleep apnea on a direct or secondary basis, to include the “intermediate step” of obesity. Accordingly, service connection for obstructive is not warranted. A.M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.