Citation Nr: 21032150 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-35 256 DATE: May 26, 2021 ORDER Service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's obstructive sleep apnea is proximately due to his obesity and his obesity was caused by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as proximately due to his service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1984 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2016. A copy of the transcript has been reviewed and associated with the claims file. This matter was last before the Board in January 2021, at which time it was remanded for additional evidentiary development. 1. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD) Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an 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). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 449 (1995). Furthermore, although obesity is not a disability for VA compensation purposes, 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). See VAOPGCPREC 1-2017. As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 303-04 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has been diagnosed with obstructive sleep apnea (OSA) and asserts that it was incurred in service and/or is secondary to his service-connected PTSD. In the alternative, he indicated that his obesity was caused by his service-connected PTSD, which lowered his motivation to exercise and contributed to his poor food choices, and was a substantial factor in developing sleep apnea. The Veteran's service-treatment records reveal that he had sleep problems secondary to stress in January 1988. In May 1991, he complained of sleeping issues and began to keep a sleep journal. Thus, he has a current disability and in-service incurrences. The remaining question is whether his OSA is related to service and/or secondary to his service-connected PTSD. In a February 2013 statement, the Veteran's military colleague noted that the Veteran snored and would stop breathing while in service. In a February 2013 statement, the Veteran indicated that his wife and military colleagues complained of his snoring during his 1990-1991 tours. Furthermore, in an October 2018 statement, he indicated that due to his PTSD, he was less motivated to exercise and that his mental health led him to make poor food choices, including sweets and comfort foods. Lastly, the Veteran testified at the hearing in April 2016 and indicated that his wife would tell him that he stopped breathing while in service and would complain of his snoring after service, but he did not realize that it was a disorder. The Veteran was afforded a VA examination in October 2013, at which time the examiner opined that his sleep apnea was less likely than not proximately due to or the result of his PTSD. The examiner reasoned that when he was diagnosed with sleep apnea he weighed 304 pounds and that obesity is a significant risk factor for sleep apnea. The Veteran submitted a sleep apnea disability questionnaire and medical opinion by G.U., ARNP, MN, FN, LNC dated in October 2018. Nurse G.U. concluded that the Veteran's weight gain and obesity was related to his service-connected PTSD and that his OSA was related to his obesity and weight gain. Without his obesity and weight gain, his OSA would not have occurred. She reasoned that when the Veteran left service he weighed 160 pounds and his current weight was 305 pounds, which met the national standard for obesity. She further indicated that his current obesity disability chronologically developed after the mental health stressor events. Moreover, he was currently prescribed Prozac and Desyrel for his service-connected PTSD, which was known to promote weight gain. Accordingly, she ultimately concluded that without his current obesity diagnosis his OSA would not have occurred. A VA medical opinion was provided in October 2020. The examiner concluded that the Veteran's sleep apnea was not related to his period of active service, including his service-connected PTSD. The examiner noted that it was statistically more likely that the Veteran's obstructive sleep apnea was secondary to his increasing age, weight, and gender. Furthermore, there was no indication in the literature that the nature of the Veteran's service-connected disabilities increased the likelihood of his obesity beyond that of the general population. Lastly, the examiner indicated that there was no clinical research establishing the level of activity and exercise and PTSD given that the initial reduction in excess weight is a function of willful caloric intake. Another VA medical opinion was subsequently issued in January 2021. The examiner concluded that the Veteran's obesity was due to the result of ingesting more calories than needed. The examiner stated that obesity was a risk factor but did not cause OSA. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's OSA is secondary to his service-connected PTSD. In this regard, Nurse G.U. conducted a review of the record and considered supporting articles and concluded that the Veteran's obesity was related to his PTSD and that his OSA was secondary to his obesity. Moreover, without the obesity, his OSA would not have occurred. The Board acknowledges the negative opinions provided by the October 2013, October 2020, and January 2021 examiners. However, it gives little weight to these opinions. In this regard, all of the examiners acknowledged that obesity was a risk factor in the development of OSA. However, they failed to acknowledge or discuss the Veteran's assertions that his mental health played a factor into his poor food choices and lack of motivation to exercise. Moreover, the examiners put more weight on statistical data of the generalized population rather than the individualized fact pattern in the Veteran's development of OSA. Based on the above evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence is in equipoise and the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for OSA, to include as proximately due to his service-connected PTSD, is warranted. 38 C.F.R. §§ 3.102, 3.310(a). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.