Citation Nr: 22019059 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-58 026 DATE: March 31, 2022 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea is proximately due to his service-connected diabetes. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for sleep apnea. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an 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 current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310 (2018); see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his diagnosed sleep apnea is secondary to his service-connected diabetes. See Notice of Disagreement, April 2015; Statement in Support of Claim, February 2016; VA Form 9, October 2017; see also VA Examination, September 2016 (noting a diagnosis of sleep apnea). In February 2018, the Veteran's private physician for several years submitted a statement discussing the Veteran's conditions. The physician opined that the Veteran's sleep apnea is at least as likely as not proximately due to or the result of or has been increased in severity by his service-connected diabetes. The physician reasoned that the Veteran's diabetes has contributed to his weight gain, which then has contributed to his sleep apnea. The Board observes that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. See VAOPGCPREC-1-2017; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020); Garner v. Tran, 33 Vet. App. 241 (2021). The Board acknowledges the September 2016 VA negative nexus opinion but finds the opinion inadequate. In the opinion, the examiner notes that the Veteran has a diagnosis of diabetes and a well-documented history of weight issues, and the examiner recognizes that medical literature shows a link between sleep apnea and weight gain. However, when giving an opinion, the examiner focuses solely on whether a direct link between diabetes and sleep apnea exists rather than addressing if weight gain could be an intermediary step. Based on all the medical and lay evidence, the Board finds that the evidence shows that the Veteran's sleep apnea is related to his service-connected diabetes. Accordingly, service connection is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.