Citation Nr: 21026914 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-11 707 DATE: May 4, 2021 ORDER 1. Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to a service-connected disability, is granted. 2. Entitlement to service connection for an insomnia disorder, as secondary to a service-connected disability, is granted. FINDINGS OF FACT 1. The Veteran's OSA, which was previously diagnosed during the pendency of the claim, was proximately due to and aggravated beyond its natural progression by his service-connected lumbar spine degenerative disc disease, left knee chondromalacia patella, and depressive disorder. 2. The Veteran's insomnia disorder, previously diagnosed as idiopathic hypersomnia with long sleep duration, was proximately due to and aggravated beyond its natural progression by his service-connected lumbar spine degenerative disc disease, left knee chondromalacia patella, and depressive disorder. CONCLUSIONS OF LAW 1. Service connection for OSA, as secondary to service-connected disability, is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Service connection for insomnia disorder, as secondary to service-connected disability, is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the Marine Corps from October 1996 to October 2000 and in the Army from August 2006 to November 2007; he had additional service in the Army National Guard from May 2005 to August 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 Department of Veterans Affairs (VA) rating decision. In January 2019, a videoconference hearing was held before the undersigned. In May 2019 and August 2020, the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to service connection for a sleep disorder claimed as sleep apnea The Veteran's initial claim, filed in July 2013, indicates he was seeking service connection for sleep apnea with sleep disturbances and nightmares. In a September 2014 statement expressing disagreement with a December 2013 rating decision, he asserted that his sleep apnea was secondary to his service-connected depressive disorder. In a February 2016 substantive appeal statement, he asserted that his sleep apnea was also secondary to pain he experienced, referring to his service-connected lumbar spine degenerative disc disease and chondromalacia patella of the left knee, which, he contends, led him to gain an "enormous" amount of weight that, in turn, caused the sleep apnea. At the January 2019 Board hearing, he testified that his sleep apnea was related to his service-connected low back and left knee disabilities, explaining that they resulted in weight gain that "put the additional stress on my body" and caused or contributed to the sleep apnea. 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Obesity is not considered a disease for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110. Obesity, per se, is also not a disability for purposes of 38 C.F.R. § 3.310. However, obesity may be an "intermediate step" between a service-connected disability and a current disability for which service connection may be established on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). Because the Veteran has not specifically raised, and the record does not reasonably raise, entitlement to direct service connection for a sleep disorder, the Board will consider only entitlement to secondary service connection. (In any case, regarding direct service connection on January 2020 VA examination, the Veteran reported that his sleep apnea was diagnosed in 2008 (after service), and VA examiners in January 2020 and October 2020 opined that his diagnosed sleep disorders were not likely related to any complaints, treatment, or diagnosis of a sleep disorder during service. There is no medical opinion of record to the contrary.) The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by, service-connected disability. For the period considered in this appeal, which begins in July 2013 with the filing of the claim of service connection for "sleep apnea," the Veteran has received different diagnoses. A May 2013 VA sleep study found a diagnosis of mild OSA. Then, a January 2020 VA examiner found that he no longer had sleep apnea because a loss of weight (which presumably he had gained from inactivity and/or overeating) had resolved it; however, the examiner also observed that a private sleep study in September 2018 revealed idiopathic hypersomnia with long sleep duration. A different (fee-basis) VA examiner in October 2020 determined that the claimed sleep disorder was not proximately due to or the result of the Veteran's service-connected disabilities of degenerative disc disease of the lumbar spine, chondromalacia patella of the left knee, and depressive disorder, but that it was at least as likely as not aggravated beyond its natural progression by the service-connected disabilities. The examiner cited the Veteran's chronic low back and left knee pains as causing his sleeping troubles, which in turn led to a worsening of his sleep apnea. Further, in noting that medical literature showed insomnia was a common symptom associated with depression, the examiner found that the Veteran's insomnia led to worsening of sleep apnea symptoms including hypersomnolence. Regarding obesity, the examiner remarked that weight gain/obesity could have resulted from conditions not associated with service and that sleep apnea could have resulted from conditions other than obesity. In addendum opinions in November and December 2020, the examiner explained with rationale that the Veteran's obesity was likely a crucial factor in the causation and aggravation of his sleep apnea that resolved (as shown by the sleep study in 2018) with weight loss. The examiner asserted that the Veteran's sleep apnea and other sleep disorders likely would not have occurred without obesity, and that his "new baseline condition" was hypersomnia with long sleep duration. An October 2020 VA (fee-basis) examination report shows that a psychologist conducted an examination of the Veteran and modified the previous finding of idiopathic hypersomnia with long sleep duration (on the 2018 sleep study) to insomnia disorder. He also determined that the Veteran's sleep disorders were both caused and aggravated by his three service-connected disabilities via the pain from musculoskeletal disabilities affecting his sleep quality and via the sleep difficulties manifesting as a symptom of his depressive disorder. Upon review of the record, it is clear that the Veteran's sleep disorders consisted of a diagnosis of OSA, which resolved during the pendency of the appeal, and a diagnosis of idiopathic hypersomnia with long sleep duration, was subsequently changed to insomnia disorder, which is ongoing. One examiner gave equivocal opinions as to whether the Veteran's service-connected disabilities caused or aggravated his sleep disorders (through the critical intervening factor of his obesity), whereas another examiner determined that the service-connected disabilities both caused and aggravated them. In short, the competent medical opinions establish that the Veteran's OSA and insomnia disorder (formerly idiopathic hypersomnia with long sleep duration) were proximately due to and aggravated beyond their natural progression by service-connected disabilities. Thus, the Board concludes that the evidence supports the Veteran's claim of service connection and that service connection for OSA and insomnia disorder on a secondary basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.