Citation Nr: A25009586 Decision Date: 02/03/25 Archive Date: 02/03/25 DOCKET NO. 241122-496572 DATE: February 3, 2025 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's OSA is secondary to his service-connected right ankle injury with traumatic arthritis, to include obesity as an intermediate step. CONCLUSION OF LAW The criteria for service connection for OSA as secondary to a service-connected disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The rating decision on appeal was issued in November 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In April 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the service connection claim for OSA, most recently addressed in a January 2022 rating decision. In November 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2023 AOJ supplemental claim decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In Williams v. McDonough, 37 Vet. App. 305 (2024), the United States Court of Appeals for Veterans Claims held the Board should not adjudicate an appeal until the time for the appellant to switch Board dockets has ended. This period ends either one year from the date the AOJ mailed notice of the decision on appeal, or 60 days from the date the Board received the VA Form 10182, whichever date is later. 38 C.F.R. § 20.202(c)(2). Here, the Board may proceed with adjudication because this decision represents a full grant of the benefit sought on appeal, so the Board finds there is no prejudice to the Veteran. 1. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran contends he is entitled to service connection for his OSA. More specifically, the Veteran asserts his OSA is secondary to his right ankle injury with traumatic arthritis with associated weight gain/obesity. See VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), November 2024. The Board finds service connection for OSA is warranted. Secondary service connection is warranted if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Although obesity cannot be service connected on a direct basis, obesity may serve as an intermediate step between a service-connected disability and a condition claimed on a secondary basis. VAOPGCPREC 1-2017. In order for secondary service connection to be granted under this theory, the record must demonstrate that: (1) the service-connected disability caused the veteran to become obese; (2) the obesity, as a result of the service-connected disability, was a substantial factor in causing the claimed secondary disability; and (3) the claimed secondary disability would not have occurred but for the obesity caused by the service-connected disability. Id. Here, the first and second element of secondary service connection are met. The November 2023 rating decision favorably found the Veteran is diagnosed with a disability, OSA. See Rating Decision, November 2023. Further, the Veteran is service connected for right ankle injury with traumatic arthritis. See Rating Decision Codesheet, October 2024. At issue is whether the medical evidence of record establishes a nexus between the Veteran's OSA and the service-connected disability of right ankle injury with traumatic arthritis. The Board finds it does. First, the Board finds the evidence of record gives rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step. In April 2023, the Veteran submitted a medical opinion by a private physician dually certified in sleep medicine. The physician opined it is at least as likely as not that the Veteran's current OSA with CPAP is secondary to, related to, and/or aggravated by his service-connected conditions, to include right ankle injury with traumatic arthritis with subsequent sleep disturbance and weight gain/obesity. The physician noted the Veteran has a current obesity condition, and that the Veteran has had a total weight gain of approximately 100 pounds from active duty to present time. See Medical Treatment Record, April 2023. A July 2022 VA treatment record reflects the Veteran is diagnosed with obesity. See VA treatment records, received October 2023, dated July 15, 2022. Thus, the Board finds the theory of secondary service connection with obesity as an intermediate step is reasonably raised by the medical evidence of record. See Garner v. Tran, 33 Vet. App. 241 (2021). Second, the Board finds the medical evidence of record establishes that the Veteran's service-connected disability of right ankle injury with traumatic arthritis caused him to become obese. The private physician noted that the Veteran is service connected for right ankle injury with traumatic arthritis and that his associated symptoms include pain, painful range of motion, and associated sleep disturbance related to the pain. The physician found that due to the chronic pain in the Veteran's right lower extremity, he has participated in less physical activities and has led a more sedentary lifestyle, which is a contributing factor to his weight gain. Further, the physician noted the Veteran weighed 150 pounds at military entrance and currently weighs 250 pounds, with a current BMI of 34.9. The physician explained pertinent medical literature attributes this weight gain to his service-connected right ankle injury with traumatic arthritis. The physician referenced supporting medical literature. See Medical Treatment Record, April 2023. Accordingly, the Board finds the April 2023 private medical opinion adequately establishes that the Veteran's service-connected disability contributed to him become obese. Third, the Board finds the medical evidence of record establishes that the Veteran's obesity was a substantial factor in causing his claimed OSA. The physician further referenced medical literature that explained that the pathophysiology of OSA is intimately linked to obesity. The physician discussed relevant medical literature and concluded that the Veteran's service-connected right ankle injury with traumatic arthritis, per the medical literature, promoted sleep disturbance and weight gain and led to his current obesity condition which then led to his diagnosis of OSA. See Medical Treatment Record, April 2023. Fourth, the Board finds the medical evidence of record establishes that the Veteran's OSA would not have occurred but for obesity caused by the Veteran's service-connected disability of right ankle injury with traumatic arthritis. The physician found that after a "thorough review of medical records, [the Veteran's] current diagnosis of OSA, [his] service-connected right ankle injury with traumatic arthritis, a documented history of weight gain chronologically occurring after the musculoskeletal injuries, and musculoskeletal medication with known pharmacology to generate CNS depression with high risk for respiratory depression, contributing to sleep disturbance and the potential for rostral fluid shift at night, and medical literature in support of the nexus rationale, it is at least as likely as not (a 50 [percent]/50 [percent] probability) that the Veteran's current [OSA] with CPAP is secondary to, related to, and/or aggravated by service- connected conditions to include right ankle injury with traumatic arthritis with subsequent sleep disturbance and weight gain/obesity." See Medical Treatment Record, April 2023. A review of the claims file reflects the AOJ did not obtain a medical opinion that addressed the theory of secondary service connection for OSA, to include obesity as an intermediate step. (Continued on the next page) ? Therefore, the Board finds the competent and probative medical evidence of record establishes a nexus between the current disability and the service-connected disability of right ankle injury with traumatic arthritis, to include obesity as an intermediate step. Accordingly, entitlement to service connection for OSA is granted. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tapia 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.