Citation Nr: 21049896 Decision Date: 08/13/21 Archive Date: 08/13/21 DOCKET NO. 19-11 704 DATE: August 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to his right knee disability, is granted. FINDING OF FACT Giving the Veteran the benefit of the doubt the evidence is sufficient to show that the Veteran's service-connected right knee disability aggravated or caused his obesity which in turn was caused by his OSA, which would not have occurred but for the obesity caused or aggravated by the service-connected right knee disability. CONCLUSION OF LAW The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; Walsh v. Wilkie, 32 Vet. App. 300, 306-307 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army on active duty from September 1980 to August 1982. This matter returns to the Board of Veterans' Appeals (Board) from an April 2021 Board decision (Board Remand) remanding the appeal for additional development by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). By way of background, this appeal originates from the Veteran's disagreement with the denial of his claims by the AOJ for which the Board later issued a December 2019 decision affirming those denials. The Veteran appealed the Board's December 2019 decision to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In August 2020, the Court issued an order implementing the Parties' Joint Motion for Remand (JMR) to vacate the December 2019 decision and remand the matter for further development. The Board implemented the provisions of the JMR and CAVC order in its October 2020 remand. Service Connection Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). 1. Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to his right knee disability, The Veteran contends that his service-connected right knee disability has aggravated his obesity, which in turn has contributed to the development of his OSA. The Veteran claims specifically that his right knee disability precluded him from exercising and to lose mobility, which caused or contributed to his current condition of morbid obesity. This obesity caused or aggravated his OSA. The Veteran was granted entitlement to service connection for his right knee strain disability, effective August 12, 1982, at a non-compensable rating level, which was increased to a 10 percent disability rating level effective April 20, 2020. As noted in the CAVC JMR, the Board is required to consider whether the Veteran's service-connected right knee disability has aggravated his obesity, thus serving as an intermediate step for entitlement to service-connection for OSA on a secondary basis. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation, where appropriate, in its analytical framework. 38 C.F.R. § 3.310(a) and (b), respectively. Here that analysis would be: (1) whether the service-connected right knee disability caused the veteran to become obese or aggravated the veteran's obesity; (2) if so, whether the obesity or aggravation of obesity as a result of the service-connected right knee disability was a substantial factor in causing the current OSA disability; and (3) whether the current OSA disability would not have occurred but for obesity caused or aggravated by the service-connected right knee disability. Walsh, 32 Vet. App. at 306-307. If these questions are answered in the affirmative, then the OSA disability may be service connected on a secondary basis. After remand, the VA obtained a new Sleep Apnea Disability Benefits Questionnaire (DBQ) and numerous addendum medical opinions related to the Veteran's claim. Unfortunately, no single medical opinion provided was able to adequately answer the question of whether the Veteran's service connected right knee disability caused or aggravated his obesity, which in turn caused or aggravated his current OSA, indication that to do so would require reliance on mere speculation. These opinions did note that the Veteran's right knee disability did not directly cause or aggravate the Veteran's OSA. They also uniformly confirmed that obesity is a known and major risk factor for the development of OSA. There was one opinion that it is at least as likely that the Veteran's morbid obesity aggravated his sleep apnea. The opinions related to the Veteran's right knee disability causing his obesity, or whether obesity caused by his right knee caused or aggravated his OSA were not clear or definitive, often citing multiple factors involved or the need to resort to speculation as to the impact of the Veteran's right knee disability on the development of his obesity. Here the Board must rely on other evidence to make this determination. The Veteran submitted two private medical opinions in support of his claims. The first was submitted in July 2017 and that examiner, G.U. opined that the Veteran's OSA was aggravated by his service-connected right knee strain. The examiner reasoned that his weight gain "has been established as secondary to sequalae of a more sedentary lifestyle related to joint pain, knee stiffness and muscle weakness." The examiner also stated the Veteran's right knee pain has caused "sleep disturbance" and multiple medical studies "indicate that partial sleep loss, to include insomnia and frequent night-time awakenings, increase the risk of obesity and weight gain." Id. The examiner concluded that the Veteran's weight gain has been a major risk factor for his development of OSA. The second medical opinion was submitted in November 2017 and the examiner, M.B., PA-C, opined that the Veteran's OSA was more likely than not aggravated by his service-connected right knee strain. The examiner's rationale was that the Veteran's chronic knee pain led to a more sedentary lifestyle which is a contributing factor in his weight gain. Id. Additionally, the Veteran has made numerous statements which reiterate and reinforce his contentions stated above which includes statements as to the impact of his right knee disability on his ability to exercise and his loss of mobility. The Board finds the Veteran to be competent to provide testimony relating to symptoms or facts of events that he observed or experienced, and which are within the realm of his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training he is not competent to make a nexus opinion concerning whether his right knee disability actually caused his obesity or that such obesity caused his OSA. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on the above, the Board finds the evidence to be in relative equipoise as to the impact of the Veteran's right knee disability on his becoming obese and whether, or to what extent, that obesity caused his OSA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, giving the Veteran the benefit of any reasonable doubt, the Board finds that the evidence does support his claim that his right knee disability aggravated or caused his obesity which in turn caused or aggravated his OSA. 38 C.F.R. § 3.310. The Board grants the Veteran's claim. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.