Citation Nr: 21031282 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-49 000 DATE: May 21, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The Veteran's service-connected disabilities caused the Veteran to become obese; the Veteran's obesity was a substantial factor in causing sleep apnea; and sleep apnea would not have occurred but for obesity. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310; VAOPGCPREC 1-2017. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from June 1983 to August 1983, and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a September 2019 video hearing before the undersigned Veterans Law Judge at the Albuquerque RO. A transcript of the hearing is associated with the claims folder. In December 2019, the Board remanded the issues of entitlement to service connection for sleep apnea and a low back condition for further development. In a September 2020 rating decision, the RO granted service connection for a low back condition, constituting a full grant of the benefits sought on appeal with regard to that issue. The Veteran contends that his service-connected disabilities, particularly his service-connected knee and back disabilities, prevented him from exercising, which, in turn, led to obesity, which he believed caused or contributed to his sleep apnea. 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). In order to determine if obesity is an "intermediate step," an adjudicator must resolve the following issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. See VAOPGCPREC 1-2017. In this case, in a May 2017 VA medical opinion, an examiner opined that the Veteran's sleep apnea was not caused by his service-connected PTSD, but instead was the result of his obesity. Subsequent to the Board's remand, in several September 2020 reports, a VA examiner opined that: (1) it is at least as likely as not that any of the Veteran's service-connected disabilities of PTSD with alcohol abuse, tinnitus, and bilateral tendonitis/tendinosis with patellofemoral pain syndrome or all of them caused the Veteran to become obese; (2) the Veteran's obesity was at least as likely as not a substantial factor in causing his sleep apnea; and (3) the Veteran's sleep apnea would not have occurred but for obesity caused by his service-connected disabilities. The examiner's opinions were accompanied by extensive rationale and discussion of the evidence of record with citations to specific treatment records. There are no contrary opinions of record. Based on the foregoing, the Board finds that the criteria for service connection for sleep apnea on a secondary basis have been met and the claim for service connection is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.