Citation Nr: A21015901 Decision Date: 09/24/21 Archive Date: 09/24/21 DOCKET NO. 200513-84724 DATE: September 24, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's service-connected unspecified depressive disorder with anxious distress and service-connected cold weather injuries to the bilateral feet caused the Veteran to become obese, and obesity was a substantial factor in the Veteran developing OSA; and his OSA would not have occurred but for the obesity caused by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310; VAOPGCPREC 1-2017 (January 6, 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1980 to April 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision. The Veteran timely appealed this decision to the Board in a May 2020 Notice of Disagreement (VA Form 10182) and requested a direct review by a Veteran's Law Judge. Since the Veteran chose direct review, the Board, in adjudicating this matter, may consider evidence associated with the record through the January 2020 rating decision on appeal. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in, or aggravated by, active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Aggravation of a nonservice-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310 (b). The United States Court of Appeals for Veterans Claims (Court) held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity above the degree of disability existing before the increase, regardless of its permanence. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. At the outset, the Board observes OSA is not one of the enumerated chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on chronic symptoms in service and continuous symptoms since service do not apply here for that particular disorder. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a), may still qualify for service connection under the three-element test for disability compensation listed in 38 C.F.R. § 3.303(a). Walker, 708 F.3d at 1338-39. The Board further notes 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. See VAOPGCPREC 1-2017 (January 6, 2017). Obesity may also be a linking condition between a previously service-connected disability and a secondary disability if the following factors are met: a previously service-connected disability caused the Veteran to become obese; obesity due to a previously service-connected disability was a substantial factor in developing a secondary disability; and the secondary disability would not have occurred but for the obesity caused by the service-connected disability. Id. Obesity cannot be service connected. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, it can act as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan. 6, 2017). For obesity to act in this manner, it must be established a service-connected disability caused the Veteran to become obese or aggravated his obesity, obesity or the aggravation of obesity was a substantial factor in causing the current disability, and the current disability would not have occurred but for the obesity or aggravation of the obesity. Id.; Walsh v. Wilkie, 32 Vet. App. 300, 304-307 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). Therefore, 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. Service connection for OSA is granted. At issue is whether the Veteran is entitled to service connection for OSA. The weight of the evidence indicates the Veteran is entitled to service connection. Regarding this, the Veteran's treatment records indicate he has current diagnoses of OSA and obesity. Furthermore, the Veteran has been previously granted service connection for an unspecified depressive disorder with anxious distress in addition to cold weather injuries to the bilateral feet. See January 2020 Rating Codesheet. A VA medical opinion is of record from May 2014. The examiner opines the Veteran's mild OSA was not diagnosed until October 2013 and that he has multiple risk factors for the development of OSA to include his obesity, male gender, race, age, etc. Therefore, they found it is less likely as not the Veteran's mild OSA was incurred in or caused by his military service (i.e., as they note, not diagnosed nor treated while in service), nor was it caused by his service-connected hypertension or atrial fibrillation. The Veteran underwent a VA examination in November 2018. A diagnosis of OSA was noted. Regarding its etiology, the examiner notes the Veteran's service treatment records are silent for any complaints or diagnosis of OSA. The examiner reviewed the Veteran's buddy statements, and they note the statements reference a time when the Veteran had not been diagnosed with OSA. The examiner then states any consideration of the buddy statements would be resorting to speculation in finding the Veteran's OSA first manifested during active-duty service because the statements are subjective evidence. In a June 2019 addendum opinion, the examiner notes that although there is an association between OSA and mental health diagnoses such as depression, there is no cause-and-effect relationship between the two diseases directly that causes one or the other or a direct link to aggravation. Therefore, they conclude, it would be less likely than not the Veteran's OSA was caused or aggravated by the Veteran's depression. A VA addendum opinion is of record from January 2020. First, the examiner observes the Veteran's buddy statements are insufficient to establish the occurrence of OSA during the Veteran's active-duty service because they note the statements are subjective evidence and objective evidence would be needed to establish the presence of OSA during the Veteran's active-duty service. For secondary service connection or causation and aggravation, the examiner notes current medical literature documents associations between OSA and mental health conditions such as a depressive disorder. However, they find there is no conclusive evidence supporting a cause-and-effect relationship between the Veteran's depressive disorder and OSA. They then conclude it would be less likely than not that the Veteran's depressive disorder caused or aggravated his OSA. They also find there is no pathophysiologic mechanism by which the Veteran's bilateral foot condition would cause OSA, and they conclude it would be less likely than not the Veteran's bilateral foot condition has caused or aggravated his OSA. As to whether the Veteran's service-connected disabilities caused him to make poor food choices or avoid exercise, the examiner finds the Veteran's food choices were not caused by his service-connected disabilities. For their rationale, they note choices are made of one's own free will, and in the absence of any physical exercise, obesity can be controlled through dietary changes or caloric restriction alone. They also state in some circumstances, due to their anatomical neck and oral structures, OSA can develop in individuals with normal height and weight parameters. They conclude by stating it cannot be opined if this Veteran would have developed OSA in the absence of his obesity as he was overweight at time of his diagnosis. There are two positive nexus statements of record. The first is dated from February 2019, which was completed by G.U., an advanced practice nurse, and there are three opinions associated with it. The first opinion notes it is at least as likely as not the Veteran's weight gain and obesity is due to and/or related to his service-connected unspecified depressive disorder with anxious distress and his service-connected bilateral foot condition to include due to cold weather injuries. The second opinion states it is at least as likely as not the Veteran's OSA is secondary to, related to, and/or aggravated by his weight gain and obesity due to his service-connected unspecified depressive disorder with anxious distress and his service-connected bilateral foot condition to include due to cold weather injuries. The third opinion states it is at least as likely as not that without the Veteran's weight gain and obesity, his OSA would not have occurred. For their rationale, the examiner notes the Veteran's current diagnoses of OSA and his service-connected psychiatric condition. The examiner then notes the Veteran has been prescribed medications for his mental health to include a class of drugs with side effects that include changes in weight. The examiner also notes, regarding weight gain, the Veteran's service-connected bilateral foot condition causes pain, painful motion, and sleep disturbance due to pain. The examiner also notes the Veteran's progressive weight gain and found his obesity condition developed chronologically after his mental health stressor events, beginning his mental health medication, which is known pharmacologically to promote weight gain, and his musculoskeletal injuries to his feet. The examiner also highlights recent studies that support depression induces weight gain and obesity. The examiner then goes on to highlight a connection between sleep disturbance, a risk of obesity, and weight gain. The examiner notes several studies to support their findings. The second positive nexus opinion is from September 2019, which was completed by M.B., a physician assistant. A single positive nexus opinion was noted. The examiner states due to sleep disturbance and weight gain or obesity, the Veteran's OSA is secondary to, related to, and/or aggravated by his service-connected unspecified depressive disorder with anxious distress and his service-connected bilateral foot condition. For their rationale, the examiner notes much of the same rationale as was noted by the February 2019 opinion. The examiner considers the lay evidence in their determination by finding there is a greater likelihood of obesity of a person who has a mental illness, including an unspecified depressive disorder and anxious distress. The examiner notes the Veteran submitted a lay statement noting his mental health condition has led him to make poor food choices, consume high-caloric foods, and become less motivated to exercise. The examiner notes that medical literature has associated weight gain and obesity with most of the medication classifications used for mental health treatment. They also note these medications can worsen sleep disorders. The examiner concludes the Veteran's mental health medication has contributed to his weight gain and that sleep disturbances and medications aggravate his OSA. Furthermore, they find that chronic pain of the bilateral extremities has resulted in less participation in physical activities, has led to a sedentary lifestyle, and has been a contributing factor to his weight gain. They note that chronic pain is one of the major factors that obese patients list for their weight gain. Weighing the opinions of record, the Board finds the positive nexus opinions probative but finds little probative value with the negative VA opinions of record. Regarding this, none of the VA opinions provide sufficient opinions for secondary service connection as there are no separate findings and rationales for both causation and aggravation. The Court has held causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Furthermore, the examiner notes current medical literature documents associations between OSA and mental health conditions such as a depressive disorder. However, they also find no conclusive evidence supporting a cause-and-effect relationship between the Veteran's depressive disorder and OSA. The Board finds the conclusion inadequate because "conclusive evidence" is not needed. All that is needed is the evidence to support the claim or to be in relative equipoise, with the Veteran prevailing in either event. 38 U.S.C. § 5107; Gilbert, supra. Furthermore, the examiner found that none of the Veteran's poor food choices were caused by his service-connected disabilities. However, the Board does not find the examiner's rationale convincing. While the examiner notes choices are made of one's own free will and obesity can be controlled through dietary changes or caloric restriction, alone, in the absence of any physical exercise, such a finding does not consider the effect of the Veteran's service-connected psychiatric condition on his ability to or desire to commit to a calorically restrictive diet. The VA examiner also states that in some circumstances, OSA can develop in individuals with normal height and weight parameters as these individuals can develop OSA due to the anatomy of their neck and oral structures; however, they provide no evidence as to whether the Veteran's OSA is due to his anatomy or neck or oral structures versus their obesity. In order for the Board to afford any weight to a medical opinion, it must be based on the application of reliable principles and methods to sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, it can be said some of the VA examiner's findings support a finding that the Veteran's service-connected psychiatric condition resulted in his obesity. By the examiner's own admission, they note that current medical literature documents associations between OSA and mental health conditions such as a depressive disorder. Thus, the Board must balance the portion of the medical opinion that could be said identifies the Veteran's service-connected psychiatric condition as a known risk factor for obesity against the portion of the opinion that concludes there is no conclusive evidence supporting a cause-and-effect relationship between the Veteran's depressive disorder and his OSA because the latter finding ignores the examiner's initial finding, which is supported by the lay evidence of record in addition to the positive nexus opinions of record. The Veteran has reported that his service-connected psychiatric condition has caused him to make poor food choices. The weight of the evidence indicates the Veteran is entitled to service connection. The Veteran's treatment records clearly indicate he has a current diagnosis of OSA, and the Veteran's claims file clearly indicates he has been previously granted service connection for an unspecified depressive disorder with anxious distress and cold weather injuries to the bilateral feet. Finally, the evidence clearly indicates that obesity was a substantial factor in the Veteran developing obesity, and, but for the Veteran's obesity, he would not have developed OSA. Regarding this, both the February 2019 and September 2019 examiners opined the Veteran's service-connected psychiatric and bilateral foot disabilities were factors that contributed to his obesity. They note the Veteran has been prescribed medications for his mental health to include a class of drugs with side effects that causes changes in weight. They also note, regarding weight gain, the Veteran's service-connected bilateral foot condition causes pain, painful motion, and sleep disturbance due to pain. The February 2019 examiner found that the Veteran's progressive weight gain correlated with his obesity condition because it developed chronologically after his mental health stressor events, with his mental health medication, and with his musculoskeletal injuries to his feet. The Board affords this great weight and concludes the Veteran's obesity was caused by his service-connected psychiatric and bilateral foot disabilities; and service connection for OSA is warranted. VAOPGCPREC 1-2017 (January 6, 2017). Here, the weight of the probative evidence of record demonstrates that obesity served as a linking condition between the Veteran's service-connected disabilities and a current diagnosis of OSA. Therefore, the evidence in this case is evenly balanced enough to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for OSA is granted. P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.