Citation Nr: 21025547 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-21 132 DATE: April 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea (OSA), was caused or aggravated by his service-connected disabilities (diabetes, heart disease (CAD), and posttraumatic stress disorder (PTSD)), or that it is otherwise etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to service-connected disabilities are not met. 38 U.S.C. §§ 1110, 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 June 1966 to March 1968. The Veteran testified at a Board hearing in October 2019. A transcript is on file. Prior decisions on several matters have been entered. The remanded issue above has been returned to the Board from the Court of Appeals for Veterans Claims. This matter was previously remanded in a November 2020 decision. Per the Board of Veterans’ Affairs (the Board’s) remand instruction, an additional medical opinion was requested, which asked for clarification as to (1) whether the service-connected disability (diabetes, CAD, PTSD) caused obesity (or aggravated obesity); (2) whether the obesity or aggravation of obesity as a result of the service-connected disability/disabilities was a substantial factor in causing OSA and (3) whether the current OSA would not have occurred but for the obesity caused/aggravated by the service-connected disability. The case has now returned to the Board for review. Service Connection Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. Establishing direct service connection generally requires competent evidence of three elements: (1) a current 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, 1167 (Fed. Cir. 2004); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). While obesity itself is ineligible for service connection, it may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. See VA. Off. Gen. Couns. Prec. Op. 1-2017, at 2-3. The pertinent inquiries are (1) whether the service-connected disability (diabetes, CAD, PTSD) caused obesity (or aggravated obesity); (2) whether the obesity or aggravation of obesity as a result of the service-connected disability/disabilities was a substantial factor in causing OSA and (3) whether the current OSA would not have occurred but for the obesity caused/aggravated by the service-connected disability. Id.; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). The Board is tasked with assuring compliance with remand directives to obtain an adequate medical examination from an examiner that would address whether or not the Veteran’s service-connected disabilities could cause or aggravate OSA even without the intermediary step of obesity. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). Entitlement to service connection for OSA, to include as secondary to service-connected disabilities. The Veteran contends his diagnosed OSA is secondary to his service-connected disabilities of diabetes, CAD, and PTSD. Specifically, the Veteran has contended that following his 2000 myocardial infarction and diagnosis of diabetes in the early 2000s, he gained a significant amount of weight which caused or aggravated his sleep apnea. To support his contentions, the Veteran submitted articles suggesting an association between OSA and diabetes. In his hearing, the Veteran (through his representative) stated there was strong medical evidence supporting that diabetes can lead to sleep apnea, and that CAD is a risk factor as well. The Veteran also submitted a medical opinion from his primary care physician attributing his OSA to diabetes and CAD. After review of the entire record, the weight of medical opinions suggest that it is less likely than not that the Veteran’s OSA is secondary to any of his service-connected disabilities. The record also suggests that the Veteran’s OSA was not aggravated beyond its natural progression by obesity to any of his service connected disabilities via an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. Finally, there is no evidence showing or suggesting that OSA had its onset during service. Service treatment records are negative for any pertinent complaints or findings. On November 2020 examination, the examiner provided primarily negative opinions to all requested statements. He did state that the Veteran’s service-connected PTSD may have aggravated the Veteran’s OSA, however the examiner was unable to supply a baseline of the Veteran’s OSA prior to aggravation, therefore we were unable to grant service connection. This examiner’s statements were not fully explained and did not thoroughly answer the BVA requested questions, therefore another medical opinion was requested to clarify these matters. A second examiner in December 2020 found that in the relationship between PTSD and OSA, the medical literature does not reveal any causal relationship between these two conditions. An association is simply not strong enough given the pathophysiology of OSA is well understood. Furthermore, service treatment records (STRs) do not support any causal relationship, nor does it support aggravation of the Veteran’s OSA. Regarding the relationship between the Veteran’s diabetes and OSA, the December 2020 examiner cited current medical literature in concluding that the relationship between diabetes and OSA is not a “uni-directional pathogenetic progression.” See December 2020 C&P Exam. Diabetes can lead to OSA, as most diabetics have insulin resistance and are prone to weight gain; however, the inverse is true as well in that obese persons are more prone to developing diabetes mellitus than non-obese persons. Current medical literature also shows that insulin resistance is a shared risk factor or component of both diabetes and OSA. The examiner went on to suggest that both conditions can lead to the other, can make the other worse or more severe, and that the treatment or control of each condition can in effect help reduce the complications of the other: “[H]owever, it cannot be said that OSA leads to diabetes, or diabetes leads to OSA, due to the fact that both may be negatively impacted by a third factor: insulin resistance and/or obesity. This lack of medical consensus on etiology also leads to a negative opinion.” Id. The same can be said with respect to the relationship between the Veteran’s heart disease and OSA. Since the Veteran has normal cardiac function, and since his diabetes medication, metformin, is known for weight loss rather than weight gain, the first examiner found no link between the Veteran’s obesity and OSA. In a more thorough review, the second examiner stated that, “In regard to his SC conditions causing obesity to include the medications used in the treatment, it is certain that many of his medications are not contributory to weight gain, nor are they by themselves be responsible for an over 40 BMI. Morbid obesity is caused by lifestyle and genetics, with the most important factor being calorie consumption and energy expenditure. There are some medical conditions, such as hypothyroidism, that contribute to obesity. In this case, weight gain likely due to a medical condition despite lifestyle decisions.” Though the opinions of record that are in agreement, the Board finds that December 2020 VA medical opinion with respect to the Veteran’s OSA are entitled to greater probative weight. This second examiner thoroughly discussed the Veteran’s medical history regarding his OSA, diabetes, CAD, PTSD, referenced medical literature, and offered clear reasoning to explain why the Veteran’s current OSA is not related to service, nor caused or aggravated by his service-connected disabilities. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The two opinions taken together are probative evidence in this matter and, in the absence of probative evidence to the contrary, highly persuasive. Moreover, as indicated, there is no evidence to suggest that OSA was present in service. The first manifestations are shown years post service. The Board acknowledges that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence (equipoise) on the merits. But, because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable in this case. This claim on appeal, therefore, is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, 4.3, 4.7.   REASONS FOR REMAND The issue of entitlement to service connection for erectile dysfunction was denied by the Board in a decision of January 2020. The decision on that issue was appealed to the United States Court of Appeals for Veterans Claims. In a Joint Motion for Remand (JMR), the decision on that issue was vacated and it was returned to the Board for further action. The essence of the JMR was that the Board had denied the issue with reliance on an examination that was not fully adequate for rating purposes. It was held that the examiner had made conclusory statements with insufficient rationale, and without consideration of all testimony and evidence on file. This matter is REMANDED for the following actions: 1. With the Veteran’s assistance as needed, obtain any records of treatment for erectile dysfunction not already provided to the VA. This should include any recent or past VA or private treatment. His assistance in identifying and obtaining the records should be requested as needed. All attempts to obtain documents should be associated with the claims folder. 2. Thereafter, but whether or not records are obtained, arrange for a VA examination with a qualified examiner to opine as to the nature and etiology of the claimed erectile dysfunction. The claims file should be made available to the examiner for review in conjunction with the examination. The examiner is requested to review the pertinent medical evidence, as well as testimony and lay statements concerning alcohol and tobacco use, or the lack thereof, and consider that testimony in any opinion entered. The examiner is requested to opine as to whether it is as likely as not (50 percent probability or more) whether any erectile dysfunction found is due to, the result of, or aggravated by the service connected diabetes, CAD, and/or PTSD. The examiner is requested to provide a complete medical rationale for all opinions entered. 3. Thereafter, review the file to ascertain that all requested development has been accomplished. If not, undertake corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Omosegbon, Babalakin O. 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.