Citation Nr: 21028343 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-13 434 DATE: May 11, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's sleep apnea is related to any aspect of his military service; or that it is secondary to his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to March 1985. The Veteran testified before the Board at a July 2019 hearing. A transcript of the hearing has been associated with the record. Service Connection The Veteran claims entitlement to service connection for sleep apnea on a direct basis. In an April 2014 statement, the Veteran recalled experiencing severe sleeping problems in the mid-1970s, including an inability to get a full-night's sleep, suffering from insomnia, feeling exhausted throughout the day, and chronic snoring. He stated that the symptoms continued until he was ultimately diagnosed with obstructive sleep apnea. Alternatively, the evidence of record has raised the issue of whether the Veteran's sleep apnea is secondary to his service-connected disabilities. Specifically, in an August 2019 statement, the Veteran's private treatment provider noted his diagnosis of sleep apnea, as well as his service-connected disabilities, including unspecified depressive disorder, bilateral lower extremity neuritis, and lumbar spine disability. The private treatment provider went on to say that the Veteran suffered from morbid obesity secondary to his condition as a physically disabled person, and that it was medically documented in clinical studies that people with obesity suffered from sleep disorder ten times more than the average population. 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). Alternatively, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In January 2017, VA's Office of General Counsel issued a precedential opinion that concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. Similarly, obesity is not a "disability" for the purposes of secondary service connection under 38 C.F.R. § 3.310. However, VAOPGCPREC 1-2017 recognized that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Recently, the United States Court of Appeals for Veterans Claims (the Court) issued a decision holding that, when VA addresses the question of obesity as an intermediate factor, it must evaluate whether a service-connected disability caused or aggravated the Veteran's obesity, just as it would when analyzing secondary service connection under 38 C.F.R. § 3.310. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence weighs against a finding that his sleep apnea had its onset during, or is otherwise related to, his active duty military service; or that his sleep apnea is caused or aggravated by his service-connected disabilities. The Veteran's available service treatment records are silent for any complaints of or treatment for sleep apnea. As noted in the November 2019 remand, aside from records dated from October 1984 to February 1985, his service treatment records are unavailable. The Veteran was advised of that fact in November 2016. When service records are unavailable through no fault of the veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Nevertheless, in a November 1984 report of medical history, four months prior to his discharge from active duty, the Veteran explicitly denied frequent trouble sleeping. In support of his claim, the Veteran submitted statements from a friend and family members. In one statement, a friend of the Veteran recalled that he had a huge problem with snoring dating back to 1977 or 1978. In another statement, the Veteran's cousin recalled that the Veteran's snoring became progressively worse over the years. She also noted that, shortly after he was discharged, he visited with her and she heard him snoring and stop breathing during the night. In another statement, the Veteran's sister recalled that his snoring was very disturbing in his 20s and 30s, and that it could be heard throughout the house. In connection with the Board's November 2019 remand, a VA medical opinion was obtained in August 2020. As noted in the January 2021 remand, the Board is satisfied with the examiner's indication that an in-person examination would provide little value relevant evidence, and finds that the agency of original jurisdiction substantially complied with the Board's November 2019 remand instructions. With regard to direct service connection, the examiner concluded that the Veteran's sleep apnea was less likely than not related to his military service. The opinion provider noted that the Veteran denied sleeping problems in November 1984, four months before his discharge. After summarizing the pertinent evidence of record, the examiner noted that, while snoring, gasping for air, and daytime sleepiness were commonly reported symptoms associated with sleep apnea, the weight of the medical literature supports that sleep apnea is not a clinical diagnosis, given that so many conditions, including primary snoring, can mimic sleep apnea and there was no constellation of signs and symptoms that was pathognomonic for the condition. The examiner further noted that the Veteran weighed 188 pounds at the time of his discharge, and he was 375 pounds when he was diagnosed with sleep apnea. The examiner further noted that obesity was the most important risk factor for obstructive sleep apnea, along with increasing age. The examiner indicated that the lay statements of record had been considered, but nevertheless concluded that the medical evidence of record was more probative. The examiner continued that the Veteran's significant post-service weight gain and increasing age were more likely than not the major contributing factors to his obstructive sleep apnea diagnosis in 2014 With regard to his claim for service connection on a secondary basis, the examiner concluded that the Veteran's sleep apnea was less likely than not proximately due to, or the result of, his service-connected disabilities. After noting the August 2019 statement from his private treatment provider and proving a summary of pertinent post-service treatment records, the examiner essentially reasoned that, since the Veteran experienced significant weight loss from 2016 to the present that was not the result of an improvement in his service-connected disabilities, his significant post-service weight gain was not secondary to his service-connected disabilities. In the January 2021 remand, the Board determined that the August 2020 VA opinion was insufficient to adjudicate the Veteran's claim, as the opinion provider did not discuss aggravation. Furthermore, the opinion lacked adequate explanation as to how it is, from a medical perspective, it can be known that service-connected disabilities did not cause or aggravate obesity, based exclusively on an observation that after gaining significant weight, the Veteran subsequently lost significant weight without improvement in his service-connected disabilities. In February 2021, another VA medical opinion was obtained. Ultimately, the opinion provider concluded that it was less likely than not that the Veteran's sleep apnea had its onset in, or was otherwise related to, his military service. The opinion provider reasoned that sleep apnea was a recognized condition well before the Veteran joined the military, and his service treatment records were silent for any sleep related issues. The opinion provider also noted that the Veteran denied sleep issues in his November 1984 report of medical history, four months before his discharge. The opinion provider then discussed the lay statements of record discussing the onset of the Veteran's snoring; however, the opinion provider noted that his snoring predated his military service according to the lay statements, that snoring was very common, and that it was neither specific to, nor diagnostic of, sleep apnea. With regard to his claim for service connection on a secondary basis, the opinion provider concluded that the Veteran's sleep apnea was less likely than not proximately due to, or the result of, his service-connected disabilities. After noting the Veteran's service-connected disabilities, the opinion provider noted that there was no evidence that those disabilities, alone or in combination, caused him to become obese or aggravated his obesity, or that obesity was an intermediate step between his service-connected disabilities and his sleep apnea. The opinion provider reasoned that obesity was due to calorie intake in excess of the calories used by the body. The opinion provider continued that such was independent of any physical or mental issue(s) alone or in combination, and that it was not necessary to exercise to lose weight. She continued that people who cannot exercise at all for any reason can still avoid excess weight gain, and the evidence of record demonstrated that the Veteran was able to lose more than 100 pounds as a result of dietary restrictions. The opinion provider then noted that, in addition to obesity, age was also a risk factor for obstructive sleep apnea. The opinion provider also noted that the Veteran had a family history of sleep apnea. The Board finds that, when taken together, the August 2020 and February 2021 VA medical opinions are the most probative evidence of record addressing whether the Veteran's sleep apnea is directly related to his military service and/or secondary to his service-connected disabilities. Significantly, the opinions are probative because they are based on a complete review of the claims file, including the pertinent lay statements of record and his pertinent treatment records, and they provide explanations that contain clear conclusions and supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In particular, the opinions clearly refect consideration of the lay statements concerning the onset of the Veteran's snoring; however, the examiner specifically noted that snoring was not necessarily indicative of sleep apnea; instead, the opinion providers relied more on his 1984 denial of sleep problems, as well as the lack of post-service treatment until 2014 and the Veteran's post-service weight gain. The February 2021 opinion provider also thoroughly discussed his contention that his sleep apnea is secondary to his service-connected disabilities, to include on the basis that his service-connected disabilities led to his obesity, and that his obesity acted as an intermediate step between his service-connected disabilities and his sleep apnea. Nevertheless, the opinion provider concluded that it was the Veteran's caloric intake, independent of any physical or mental issue(s) alone or in combination, that led to his obesity. Furthermore, the examiner also noted that his familial history and age also likely played a role in his development of sleep apnea. Insofar as the August 2019 letter from the Veteran's private treatment provider seemingly associates his obesity with his service-connected disabilities and his sleep apnea with his obesity, as noted by the November 2019 remand, the private treatment provider did not provide further explanation as to why the Veteran's obesity was caused by his service-connected disabilities, and why his sleep apnea was due to his obesity. As such, the Board finds that such is not entitled to probative value. Although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of whether the Veteran's sleep apnea is related to his military service or secondary to his service-connected disabilities is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Specifically, the question involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Neither the Veteran nor his representative are shown to have the necessary training and expertise to provide a competent opinion as to whether his sleep apnea is directly related to his military service or secondary to his service-connected disabilities. Absent competent and credible evidence demonstrating that the Veteran's sleep apnea is directly related to his military service or secondary to his service-connected disabilities, the preponderance of the evidence is against his claim. As such, reasonable doubt does not arise, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.