Citation Nr: 22020009 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 15-06 617 DATE: April 4, 2022 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to anxiety disorder, not otherwise specified (NOS) is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's sleep apnea is causally related to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1998 to June 2002. He also served in the Army National Guard from August 2006 to November 2006, to include service in Iraq. This matter before the Board of Veterans' Appeals (Board) is on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina (Agency of Original Jurisdiction (AOJ)). This matter was most recently before the Board in May 2020. At that time, the Board denied his claim for entitlement to service connection for obstructive sleep apnea. The Veteran subsequently appealed the Board's decision to the Court of Appeals for Veterans' Claims (the Court). In September 2021, the Court issued a memorandum decision, vacating the Board's decision as to this issue and remanding the claim due to the Board's failure to provide an adequate statement of reasons and bases for its decision. The claim is now back before the Board for adjudication. In its May 2020 decision, the Board observed that the Veteran's service treatment records (STRs) were silent for complaints, diagnoses, or treatment for sleep apnea or its symptoms. In pertinent part, the Board assigned "significant weight" to the opinion presented alongside an August 2019 VA examination, which noted that the Veteran's BMI increased from 30 to 39 between 2007 and 2019 a significant finding since the strongest risk of sleep apnea is obesity. Additionally, the examiner observed that while some psychiatric medications have a known risk of weight gain, the Veteran's prescribed psychotropics did not belong to this category. The Court found in its September 2021 memorandum decision that the August 2019 opinion was inadequate and therefore the Board decision was flawed by relying on its rationale. Specifically, the Court noted, "There is evidence in the record that appears to contradict both the examiner's statement that [A]ppellant's medications were not in a class associated with weight gain as well as the Board's conclusion that none of the [A]ppellant's medical providers associated his psychiatric medications with weight gain." In particular, the VA clinic records included a May 2015 progress note stating as follows: At last visit, discontinued Mirtazipine, thought it remained on his last at his request in case he found he had difficulties. He initially stopped if after our last visit, but started back on it in the past week because he had "strange thoughts" along the lines of someone being in his house, feeling anxious. It also helps him to sleep. He realizes that it contributes to weight gain, but he is accepting of that issue at this time. The Court determined that the Board's failure to consider this evidence the progress note was in error and a remand was necessary. After remand by the Court, the Veteran has submitted additional evidence in support of his claim. One medical article notes that many patients, when exposed to psychotropic medications, gain significant weight. Other studies posit a relationship between sleep disruption and obesity, psychological factors, as well as a link between PTSD and obesity. The Board finds that the evidence is at least in equipoise as to whether the Veteran's OSA is related to a service-connected disability. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The Board acknowledges that there is some evidence against the claim. In that regard, an August 2019 noted that the strongest risk of sleep apnea is obesity, and acknowledged that some psychiatric medications have a known risk of weight gain. However, that examiner concluded that the Veteran did not take any medications which caused weight gain. On the other hand, the Veteran has been prescribed Mirtazapine for sleep impairment which the Veteran's treating VA physician advised the Veteran contributed to weight gain. VA's Office of General Counsel (OGC) precedential opinion addressed questions regarding whether obesity may be considered a "disease" for the purposes of service connection under U.S.C. §§ 1110 and 1131. In that regard, VAOPGCPREC 1-2017 recognized that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Here, there is competent evidence that the Veteran's service-connected medications contribute to weight gain and his VA clinician discussed this side-effect when determining the cost-benefit of continuing this medication. The VA examiner opinion against the claim conceded that certain medications could contribute to weight gain, but did not specifically discuss the Mirtazapine prescription. Moreover, there are medical articles discussing that many patients, when exposed to psychotropic medications, gain significant weight and studies posited a relationship between sleep disruption and obesity, psychological factors, as well as a link between PTSD and obesity. Based on the foregoing, the Board concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for obstructive sleep apnea as secondary to service-connected disabilities is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.