Citation Nr: 23017331 Decision Date: 03/20/23 Archive Date: 03/20/23 DOCKET NO. 18-05 482 DATE: March 20, 2023 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT It is at least as likely as not that the Veteran's service-connected chronic sleep impairment contributed to the obesity that likely caused his sleep apnea.. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea on a secondary basis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from a September 2017 rating decision. This matter was previously before the Board in February 2020 and December 2022, when it was remanded for additional development. *** The Veteran seeks service connection for sleep apnea. 07/13/2017, VA 21-526EZ, Fully Developed Claim. A September 2018 VA examination confirms a diagnosis of obstructive sleep apnea. There is no argument or indication that the Veteran's sleep apnea began during active service. Rather, in July 2017, the Veteran stated that he had been suffering from sleep apnea "for a number of years." 07/13/2017, VA 21-4138 Statement in Support of Claim. Moreover, VA treatment records indicate that the Veteran's sleep apnea was diagnosed in approximately 2014, more than 40 years after separation from service. See, e.g., 10/19/2018, Medical Treatment Record - Government Facility. The Veteran asserts that his sleep apnea is secondary to his service-connected tinnitus. In this regard, he has stated that his tinnitus is so severe that it causes insomnia; the insomnia, in turn, causes daily exhaustion; the daily exhaustion, in turn, prevents him from exercising, resulting in weight gain; this weight gain, in turn, has caused or aggravated his sleep apnea. 04/10/2018, NOD, at 2-9. He has submitted medical literature indicating that tinnitus can cause or increase the likelihood of sleep disturbances, such as insomnia. 04/10/2018, Correspondence. In September 2018, a VA examiner opined that it is less likely than not that the Veteran's service-connected tinnitus has caused his sleep apnea. In February 2020, the Board noted that the VA examiner did not address the aggravation prong of secondary service connection and remanded for a new opinion. In May 2020, a different VA examiner opined that it is less likely than not that the Veteran's sleep apnea has been worsened beyond natural progression by his tinnitus. While this appeal was pending, service connection was established for a mental health disability, characterized as adjustment disorder with mixed anxiety and depressed mood (as secondary to the service-connected tinnitus), effective November 19, 2018. 0516/2019, Rating decision. Service connection was also established for chronic constipation (as secondary to the service-connected mental health disability), effective February 10, 2020. 05/27/2020, Rating decision. In June 2020, the Veteran reiterated his assertion that his sleep apnea is due to obesity indirectly caused by his service-connected tinnitus. (As already mentioned, he asserts that his tinnitus causes sleep deprivation, which results in lack of physical activity, which then results in obesity.) The Veteran further indicated that he takes Bupropion for his service-connected mental health disability and that this medication has a side effect of restlessness and trouble sleeping, which also contributes to his daytime fatigue and prohibits him from physical exercise. He also stated that his service-connected chronic constipation also limits his ability to perform regular exercise to control his weight. Finally, he asserted that the September 2018 and May 2020 VA opinions did not adequately address the theory of entitlement put forward by him. He attached literature regarding the side effects of Bupropion and the causes of sleep apnea. 06/08/2020, Correspondence. In December 2022, the Board remanded for an addendum opinion that would address the theory of entitlement to service connection for sleep apnea, with obesity as an intermediate step. In January 2023, a VA examiner opined that it is at least as likely as not that the Veteran's obesity caused his obstructive sleep apnea. The examiner, however, concluded that none of the Veteran's service-connected conditions caused or aggravated his obesity. The examiner's rationale was the lack of evidence documenting that any of the service-connected conditions directly or indirectly caused the Veteran's obesity. The examiner also noted that the Veteran was pre-diabetic and suggested that his obesity was more likely than not caused by the underlying insulin-resistance. Additionally, the examiner opined that is less likely than not that the Veteran's obstructive sleep apnea was caused or aggravated by a service-connected disability, adding that it is unclear whether there is an increased prevalence of obstructive sleep apnea in individuals with PTSD. In February 2023, the Veteran, through his attorney, submitted additional arguments and medical literature in support of his claim. 02/21/2023, Third Party Correspondence & Correspondence. The Veteran suggested that his sleep apnea was either caused or aggravated by his service-connected mental health disability. He cited and attached medical literature that purportedly establishes that individuals with a mental health condition are more likely to develop sleep apnea. The Veteran also took issue with the January 2023 VA examiner's conclusion that the Veteran's obesity was not secondary to a service-connected disability. In this regard, he cited medical literature that purportedly shows an association between weight change and PTSD through disordered eating, and between weight gain and the use of psychotropic medications. The arguments and evidence recently submitted by the Veteran raises questions about the adequacy of the January 2023 VA opinion. The Board further notes that the January 2023 VA opinion did not address the argument that the Veteran's chronic sleep impairment (a symptom of his service-connected mental health disability) contributed to his obesity by limiting his ability to exercise. For these reasons, the January 2023 VA opinion has little to no probative value. (Continued on the next page) After careful consideration, the Board finds that the evidence of record is sufficient to establish that the Veteran's obstructive sleep apnea is secondary to a service-connected disability. The Veteran has asserted that his tinnitus caused him to experience insomnia. This assertion was validated by an April 2019 VA examination, which concluded that the Veteran had a mental health disability (to include chronic sleep impairment) secondary to his service-connected tinnitus. The Veteran has further asserted that this chronic sleep impairment limited his ability to exercise, which, in turn, caused him to become obese. He has also asserted that his service-connected mental health disability may have contributed to his weight gain. Based on the Veteran's lay statements and resolving doubt in his favor, the Board finds that the Veteran's service-connected chronic sleep impairment contributed to the obesity that likely caused his sleep apnea. Therefore, the criteria for service connection on a secondary basis have been met. 38 C.F.R. § 3.310(a). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.