Citation Nr: 21040681 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-20 157 DATE: July 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity, is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's obstructive sleep apnea did not have its onset during service and is not otherwise related to service, to include secondary to a service-connected disability and resulting obesity. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity, 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 February 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in September 2018, March 2019, and October 2020. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. Service Connection Service connection may be established for 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. To establish service connection for a disability, the Veteran must show: (1) the existence of a present 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. Sleep apnea The Veteran asserts that his obstructive sleep apnea (OSA) is related to service or is caused by or aggravated by his service-connected bronchitis. In the alternative, he asserts his OSA is caused by the resulting obesity caused by a service-connected disability. The Veteran's service treatment records are negative for treatment of or diagnosis of OSA. The evidence shows a diagnosis of OSA as early as 2006, however, the Veteran asserts he was diagnosed with OSA in 1999. A June 2019 VA examiner confirmed the Veteran's diagnosis of OSA with a June 2019 sleep study. The examiner noted that the Veteran is treated with a CPAP, and the Veteran reports snoring without the use of a CPAP. The June 2019 VA examiner found it was less likely than not that the Veteran's OSA is related to service. The examiner reasoned that there was no diagnosis of OSA in service, nor were there any symptoms consistent with OSA in service. The examiner also found it was less likely than not that the Veteran's OSA is related to his service-connected bronchitis. The examiner explained the earliest documentation of OSA was noted as part of a problems list in 2006 at the time of transfer to Houston VA. While the pathogenesis of OSA is not completely understood, it is likely due to the interaction between unfavorable anatomic upper airway susceptibility and sleep-related changes in upper airway function. The major risk factors for the disorder include obesity, male gender, and age. There is increased association of OSA in patients with chronic lung disease. However, the co-existence of chronic lung disease (chronic bronchitis in this Veteran) and OSA does not rise to a direct causative effect in the development of OSA. The Veteran's risk factors are age and male gender. The June 2019 VA examiner stated the Veteran's OSA was less likely than not aggravated beyond its natural progression by the Veteran's service-connected bronchitis. The examiner explained a baseline level severity of OSA could not be determined because there was no objective evidence of record. The Veteran's first sleep study report is not available. The Veteran has mild OSA on the recent sleep study. There is increased association of OSA in patients with chronic lung disease. However, the co-existence of chronic lung disease (chronic bronchitis in this Veteran) and OSA does not rise to a direct causative effect in the development of OSA. The Veteran's representative asserted in an August 2019 correspondence that the June 2019 examiner did not consider secondary service connection for OSA caused by the Veteran's obesity, which in turn was caused by his service-connected bronchitis, peripheral neuropathy, and diabetes treated with insulin therapy. Service connection for the Veteran's OSA may also be available on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. Accordingly, the Board's October 2020 remand requested an addendum VA nexus opinion to consider whether the Veteran's obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. In a January 2021 addendum opinion, the VA examiner opined that the Veteran's obesity was less likely than not caused by his service-connected bronchitis, coronary artery disease, peripheral neuropathy, and diabetes. The examiner explained that obesity is caused by lifestyle and genetics, with the most important factor being calorie consumption and energy expenditure. There are some medical conditions that contribute to obesity as seen in Cushings, hypothyroidism, hypothalamic obesity, polycystic ovary syndrome, and growth hormone deficiency, not bronchitis, coronary artery disease, peripheral neuropathy, and diabetes. While exercise is important for overall health, it has been found that diet is far more important. An analysis of more than 700 weight loss studies found that people see the biggest results when they eat smart. On average, people who dieted without exercising for 15 weeks lost 23 pounds; the exercisers lost only six over about 21 weeks. The January 2021 VA examiner stated it was less likely than not that the Veteran's obesity was aggravated by his service-connected bronchitis, coronary artery disease, peripheral neuropathy, and diabetes. The examiner stated that he was unable to determine a baseline level of severity because of the lack of sufficient medical evidence. The examiner provided a list of the Veteran's weight over the course of over a decade and stated there was no evidence indicating a change of weight. The Board finds the July 2019 VA and January 2021 examiner's opinions are due significant probative value. The VA examiner provided the opinions based on an accurate understanding of the Veteran's medical history, on the examiner's own knowledge and expertise, and on an examination of the Veteran. Furthermore, the VA examiner provided rationales that explain the conclusions and gives insight into the medical aspects of the Veteran's OSA. See Nieves- Rodriguez, 22 Vet. App. at 295. The Board accepts the VA examiner's opinions as probative evidence that it is less likely than not that the Veteran's OSA is related to service or is caused or aggravated by a service-connected disability, to include resulting obesity. The only evidence indicating an association between the current OSA and service or a service-connected disability are the Veteran's own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of OSA is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. Id. In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran's current OSA and his service, nor is the OSA proximately due to, or aggravated by a service-connected disability, to include resulting obesity. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, Associate 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.