Citation Nr: 22018032 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-17 112 DATE: March 28, 2022 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities is denied. FINDINGS OF FACT 1. The evidence is against finding that service-connected disabilities caused, or aggravated obesity and the evidence is against finding that obesity caused or aggravated the Veteran's sleep apnea. 2. The evidence is against finding that the Veteran's sleep apnea was incurred during service; sleep apnea first manifested after service and is unrelated to any in-service event; and is not cause or aggravated by service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1990 to March 1999, March 2002 to December 2002, September 2005 to December 2005, and January 2011 to January 2012. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2016 rating decision of the Department of Veterans' Affairs (VA) regional office (RO). The Board remanded this matter in November 2019 and September 2021 for further evidentiary development. The case has returned to the Board for appellate review. Additional evidence (medical articles) was added to the record by the Veteran's attorney following the October 2021 SSOC. Automatic waiver applies. 38 U.S.C. § 7105(e). In correspondence submitted in November 2021, the Veteran's attorney suggested that he did not receive copies of the October 2021 VA examination reports. He did not request copies and the Board observes that the October 2021 supplemental statement of the case (SSOC) contains a verbatim account of the October 2021 examiner's report, which the attorney refers to in the November 2021 correspondence where he was able to present arguments regarding the adequacy of the examination, which will be addressed in more detail below. Further, the record contains a January 2020 Privacy Act request submitted by the Veteran's representative, requesting "a paper copy of all outstanding appealable benefit decisions regardless of whether said decision has been provided to the Veteran or the Veteran's previous counsel." The Board considers this request duplicative, as the Veteran's representative already has access to the Veteran's entire electronic claims file, including the requested records, via the Veterans Benefits Management System (VBMS). Therefore, the representative's request for access to the identified documents has already been fulfilled and no further action is required. The Board determines it may proceed with adjudication. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and 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. The Veteran is seeking entitlement to service connection for sleep apnea, to include as secondary to his service-connected disabilities. Specifically, the Veteran has contended that his sleep apnea began in service or is secondarily related to his service-connected disabilities or the medications he takes for these disabilities. See October 2017 statement from the Veteran's attorney. In the alternative, the Veteran contends that his service-connected disabilities led to his obesity, which caused or aggravated his sleep apnea. See September 2020 statement from the Veteran's attorney. Obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." VAOPGCPREC 1-2017. Specifically, a grant is warranted (1) if the service-connected disability caused the veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if this subsequent disability would not have occurred but for obesity. Id. It is undisputed that the Veteran now has sleep apnea, and it is asserted that his service-connected posttraumatic stress disorder (PTSD), bilateral knee disabilities, and bilateral foot disabilities, caused him to become obese which led to his development of sleep apnea. However, for the following reasons the Board finds that obesity is not an intermediate step between the service-connected disorders and the Veteran's sleep apnea. 38 U.S.C. §§ 1101, 1110, 1113, 5107; 38C.F.R. §§ 3.102, 3.303, 3.310. As an initial matter, the Board observes that the Veteran's service treatment records (STRs) do not show any treatments, complaints, or diagnoses for sleep apnea or a sleep disorder. Specifically, on many occasions the Veteran denied having difficulty sleeping. The Veteran's fellow serviceman submitted a letter in April 2017 stating that he heard the Veteran snore loudly and stop breathing while they were rooming together in service. As to the claim for service connection for sleep apnea, a July 2015 private treatment record (submitted in October 2016) contains a diagnosis of mild obstructive sleep apnea, worsening to moderate in rapid eye movement (REM) sleep. The private clinician stated that grade II obesity worsens sleep-disordered breathing. There is no accompanying rationale to support this opinion. The Veteran's attorney submitted medical studies in September 2020 and November 2021 that discuss the relationship between obesity and sleep apnea and the association between psychiatric disorders and obesity. The Board observes that these studies acknowledge obesity as a potential risk factor for the development and progression of sleep apnea and discuss the worsened symptoms for patients with both a psychiatric disorder and sleep apnea. Multiple VA medical opinions have been obtained. The Veteran was afforded VA examinations in November 2016 and December 2019. The examiners provided negative nexus opinions and addressed whether the Veteran's sleep apnea was related to or aggravated by his service-connected PTSD. The Board found these examination reports incomplete in the November 2019 and September 2021 Board remands as the examiners did not address the Veteran's contentions that his sleep apnea began in service and has continued since that time and that his service-connected disabilities led to obesity, which in turn caused or aggravated his sleep apnea. Pursuant to the September 2021 Board remand, a VA opinion was obtained in October 2021. The VA examiner provided a negative nexus opinion for direct service connection with the rationale that there is no evidence of sleep apnea while in service. The examiner considered the July 2015 letter from the Veteran's fellow serviceman and noted that generalized symptoms such as snoring, stoppage of breathing, choking, gasping, daytime fatigue and somnolence, difficulty falling asleep, difficulty staying asleep, easy awakening, fitful sleep, movements during sleep, etc. may have multiple ideologies, and in themselves, do not establish a diagnosis of sleep apnea. The examiner considered the Veteran's July 2015 sleep study, which showed mild obstructive sleep apnea, which likely would have been more severe had its onset been in service. It is more likely than not that the Veteran's sleep apnea developed in or around 2014/2015 and there is no indication that the Veteran achieved cessation of breathing anywhere near the threshold required for the diagnosis (5/hr sustained) and an occasional suspected cessation of breathing does not constitute a diagnosis of sleep apnea. The examiner further opined that the Veteran's obesity was neither caused by his service-connected disabilities, nor did his obesity cause or aggravate his sleep apnea because the Veteran was obese prior to the development of his service-connected disabilities and prior to his sleep apnea diagnosis. The examiner provided the rationale that obesity is a risk factor for sleep apnea, not a cause and the Veteran's obesity likely played no role other than as a risk factor because he was near-obese with a body mass index (BMI) of 29.3 in 1994, and he was considered dramatically obese as early as 2009. As the Veteran served while obese or near obese, the obesity did not occur due to service-connected disabilities. The examiner further noted that the single greatest risk factor for morbid obesity and continued obesity is obesity itself. Obesity is multifactorial and exercise plays only one role. There are exercise programs available for individuals with orthopedic conditions, including aquatic exercise, low-impact exercise, physical therapy programs, occupational therapy programs, etc. Caloric intake is the single most important independent variable in developing and maintaining obesity. The examiner concluded that as the Veteran was clearly obese long before the diagnosis of sleep apnea, it is less likely than not that obesity played a role greater than as a risk factor and the Veteran likely would have developed sleep apnea regardless of obesity. There is no evidence of aggravation of the Veteran's sleep apnea beyond its natural course due to any cause, including obesity. If obesity was the cause of the Veteran's sleep apnea, it would have developed as early as 1994. The examiner also addressed the article submitted by the Veteran by stating that the article is rendered moot by the above findings because obesity is an established risk factor for developing sleep apnea but does not explain the Veteran's sleep apnea. The Veteran was obese or near obese while in service, without sleep apnea, and morbidly obese for years prior to the diagnosis. It is more likely than not that the Veteran's obesity is due to natural factors and unrelated to service or service-connected disorders. The November 2021 correspondence from the Veteran's attorney indicates that the October 2021 examination was inadequate because he did not discuss the medical articles and studies presented by the Veteran about the relationship between obesity and sleep apnea. The Board notes that the articles presented by the Veteran and his attorney discuss that obesity is a risk factor for sleep apnea and not a cause or aggravation. As such, the Board finds that the examiner adequately addressed the arguments these articles discuss. The Board finds that the opinions expressed by the VA examiner in October 2021 were extensive in scope and addressed the matter of obesity in detail. In support of the argument, rather than submitting a thorough supporting and favorable medical opinion, the attorney attached 60 pages of various medical articles with the November 2021 statement. Two of the articles were "Sleep Apnea and Obesity: Are They Related?" and "Interactions Between Obesity and Obstructive Sleep Apnea." However, the VA examiner's opinion adequately addressed the alleged "obesity" link and found no such nexus. Two other medical articles indicated that sleep apnea is unrecognized without aggressive evaluation and can go years undiagnosed and untreated. However, the VA examiner opined that when the Veteran was diagnosed with sleep apnea in 2015, the diagnosis was mild to moderate, which would have been more severe had the Veteran gone undiagnosed and untreated for so many years. Moreover, to the extent that any medical articles submitted tend to show a correlation between obesity or psychiatric disability, or medication for either, and obesity, these articles are not specific to the facts of this case and, further, simple evidence of a correlation is not proof of causation. "A mutual relationship or some degree of correspondence that is not based on causation or aggravation is not sufficient to meet the requirements of [38 C.F.R.] § 3.310." Harvey v. Shulkin, 30 Vet. App. 10, 15 - 16 (2018) (addressing an article suggesting a correlation between sleep apnea and psychiatric disorders). In the November 2021 correspondence, the attorney also argues that the Veteran's service-connected PTSD and musculoskeletal disabilities contributed to his obesity by causing an inability for him to workout. He points to no medical opinion specific to this Veteran's case supporting that conclusion. The Board notes that the Veteran is service connected for PTSD (50 percent disabling), bilateral knee disability (10 percent disabling for each knee), bilateral foot disability (10 percent disabling combined for both feet), and tinnitus (10 percent disabling). The Board does not find medical evidence in the record stating that the Veteran's disabilities are so severe that they would significantly inhibit the Veteran from doing light exercises or control his caloric intake to prevent or decrease obesity. In the November 2021 letter, the attorney vaguely raised the issue relating to the October 2021 VA examiner's qualifications because the VA opinion did not align with the medical articles that the attorney submitted. Specifically, the attorney stated that, "with so much literature that directly contradicts the examiner's conclusion, it is unlikely this examiner even has the proper qualifications to provide this opinion". The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). The Board finds that the statement that "it is unlikely this examiner even has the proper qualifications to provide this opinion" is not a challenge to the competency of the VA examiner, but rather an allegation that the examination may not be adequate. The Board finds that VA has satisfied its duty to assist when it obtained a medical opinion from a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Board may assume a that VA medical examiner is competent. See Cox, 20 Vet. App. at 569; Hilkert v. West, 12 Vet. App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). The October 2021 opinion was provided by a general practice physician who reviewed the Veteran's claims file and provided an opinion that included a discussion of the facts in this case, medical principles, and a thorough rationale addressing all of the Veteran's contentions. The Veteran and his attorney have not offered competent and probative evidence in support of their assertions to persuade the Board that the October 2021 examination was inadequate. Thus, in the absence of clear evidence of irregularity to question the examiner's qualifications, the Board finds the examination, findings, and opinion provided to be adequate. Consideration is given to the Veteran's assertions that his sleep apnea is secondary to his service-connected disabilities or due to obesity. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of obstructive sleep apnea as is specific to this case, is outside of the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). (Continued on the next page) Accordingly, the Board finds that the evidence demonstrates that the Veteran's sleep apnea is not due to or the result of his military service or secondarily due to his service connected disabilities; the evidence demonstrates that obesity was not caused or aggravated by service connected disabilities; and the evidence does not establish that obesity due to the foregoing was a substantial factor in causing sleep apnea, and the evidence does not establish that sleep apnea would not have occurred but for obesity caused or aggravated by service connected disabilities, or medications for such, the benefit of the doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.