Citation Nr: 25005102 Decision Date: 04/15/25 Archive Date: 04/15/25 DOCKET NO. 19-26 227A DATE: April 15, 2025 ORDER Entitlement to service connection for sleep apnea, to include as secondary to bilateral ankle disabilities, is granted. FINDING OF FACT The Veteran's sleep apnea is proximately due to/aggravated by service-connected left ankle disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to bilateral ankle disabilities are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1986 to June 2006. The procedural history for this claim has been laid out in two prior Board of Veterans' Appeals (Board) decisions. In August 2023 the Board remanded the Veteran's claim for sleep apnea in order to issue a Supplemental Statement of the Case (SSOC). In September 2024, the issue of service connection for sleep apnea returned to the Board. The issue was again remanded to obtain additional VA examinations to answer the question of if the Veteran's service-connected disabilities, to include his bilateral ankle disabilities, caused or aggravated the Veteran's obesity and thus caused or aggravated the Veteran's sleep apnea. Following completion of multiple VA examinations and addendum opinions, a February 2025 SSOC continued the denial of service connection. With all remand directives completed, the issue has now returned to the Board for further appellate review. Of note, the September 2024 Board remand and the February 2025 SSOC addressed issues of service connection for lower back and bilateral hip and knee disabilities, as well. Following the SSOC, the Veteran's attorney submitted a VA Form 20-0996, Decision Review Request: Higher Level Review thereby opting those issues into the modernized review system for further processing. Those issues are no longer part of this appeal in the legacy review system. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2022. This decision reflects the Board's consideration of the testimony, evidence, and information presented in that hearing, and a transcript of the hearing is in the claims file. As an appeal in which the appellant requested, on the Notice of Disagreement, a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issues on appeal, evidence submitted by the appellant or his representative at the hearing, to include testimony provided at the hearing, and evidence submitted by the appellant or his representative following the hearing. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge 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). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). VA's General Counsel (GC) issued a precedential opinion concerning service connection based on obesity. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Precedent opinions issued by VA's chief legal officer are binding on the Board. 38 U.S.C. § 7104 (c). VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. § 1110 and therefore service connection may not be established on a direct basis. Obesity is also not a disability for the purposes of secondary service connection per 38 C.F.R. § 3.310. While service connection cannot be established for obesity as a matter of law, where obesity resulting from a service-connected disease or injury is productive of an impairment beyond that contemplated by the applicable rating criteria, VA may consider an extra-schedular rating under § 3.321(b) for the service-connected disability based on impairment. Obesity may also act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis per § 3.310. VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310 (a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 304, 306 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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(b). Entitlement to service connection for sleep apnea, to include as secondary to bilateral ankle disabilities. In a July 2024 statement from the Veteran, he argued that his bilateral ankle disabilities had prevented him from living a healthy lifestyle which resulted in weight gain. The Veteran provided an in-depth history of his weight upon entry to service as well as post-service and how the injury to the ankles have prevented him from living a healthy lifestyle. The Veteran stated that he entered service at 144 pounds but that post-service his weight increased to 230 pounds. In February 2014 the Veteran was diagnosed with obstructive sleep apnea. This was reiterated in February 2023 by a VA examiner. Therefore, the first element of secondary service connection has been met. The Veteran is currently service connected at 10 percent for residuals of a left ankle sprain and residuals of a right ankle injury. The Veteran was granted a 10 percent rating for each ankle effective July 1, 2006. Therefore, the second element of secondary service connection has been met. Accordingly, the only issue presently before the Board is if there is a nexus establishing a connection between the Veteran's bilateral ankle disabilities and his sleep apnea. In December 2013, the Veteran complained of sleep disturbances. In April 2014, the Veteran was noted to be using a CPAP. In February 2022, the Veteran received a pulmonary consult in order to transfer care for his CPAP. He was also requesting a new mask. A repeat sleep study was planned. At his November 2022 hearing, the Veteran testified that his sleep apnea was related to his service-connected sinusitis. The Veteran's wife had indicated that he was snoring and stopped breathing at times. In February 2023, a VA examination was completed. The examiner confirmed the obstructive sleep apnea diagnosis. The Veteran's condition had improved since the diagnosis and the use of a CPAP. Despite this improvement the Veteran still suffered from nonrestorative sleep. The examiner provided a negative secondary opinion finding that the Veteran's sleep apnea was not related to his service-connected headaches or sinusitis. The examiner's rationale noted that current medical literature did not support an association between either migraines or sinusitis as a cause of sleep apnea. In March 2023, a negative toxic exposure risk activity opinion was provided. The examiner noted that the Veteran's sleep apnea was not consistent with toxic exposure. In March 2024, an SSOC continued the denial-of-service connection for sleep apnea. The Veteran responded to this by noting that rhinitis and sinusitis, both service connected, result in an increased risk of developing obstructive sleep apnea. He also stated that his ankle conditions, among other things, have contributed to his obesity which is a major risk factor for obstructive sleep apnea. In September 2024, multiple VA medical opinions were received. The examiner stated that the Veteran's left ankle disability alone did not cause the Veteran's sleep apnea. However, this is not the contention made by the Veteran and so this opinion holds little probative value. Also in September 2024, a VA examiner was asked if any of the Veteran's service-connected disabilities caused or aggravated his obesity. The examiner's opinion noted that they were unable to provide an objective medical opinion on whether the Veteran's bilateral ankle conditions caused or aggravated his obesity without resorting to mere speculation. An additional opinion from September 2024 reiterated this finding. In December 2024, as these opinions failed to fully answer the question asked, an addendum opinion was requested. The examiner was asked to provide an answer on if the inability to provide an opinion without resorting to speculation was caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or in the examiner. In January 2025, an addendum opinion was completed. This opinion noted that obesity is a well-established risk factor for obstructive sleep apnea. However, the examiner continued by noting that obesity is a complex medical diagnosis with diverse contributing factors. Development of obesity was noted as unique to each individual and involves a multifactorial disease process influenced by genetics, metabolic and behavioral factors, underlying health concerns, and socio-economic factors among other things. Given this complexity, the examiner could not definitively find an intermediate link between the service-connected disabilities and his obstructive sleep apnea. The examiner did note that the Veteran's service-connected disabilities may contribute to reduced physical activity or lifestyle changes. However, despite this acknowledgement, the examiner still was unable to determine without resorting to speculation that the service-connected disabilities directly caused or aggravated the Veteran's obesity. In February 2025, a second addendum opinion was received. The examiner noted that there was no additional evidence that could change his opinion. The examiner concluded by stating that he had exhausted his medical knowledge in providing this answer. The Board has reviewed the Veteran's service treatment records (STRs) as well as his post-service medical records to track his weight. The Veteran also discussed his increasing weight in the July 2024 statement discussed earlier. The Board notes that in March 1989 the Veteran was recorded as 167 pounds. By February 2006, the Veteran's weight had increased to 195 pounds. The highest weight that the Board could find was in February 2014 when the Veteran weight 224 pounds. The Veteran's weight fluctuated over the next few years including dropping to 187 pounds in April 2021 before rising to 217 pounds in December 2022. A November 2023 measurement showed the Veteran at 210 pounds. Overall, the Veteran has gained over 50 pounds since his time in service. Taking the Veteran at his word, he entered service at 144 pounds and reached up to 230 pounds which is a gain of approximately 90 pounds. The Veteran specifically noted that his bilateral ankles had caused him to be unable to complete an exercise regimen and thus gained weight. The Board has no reason to doubt any of the Veteran's claims. While the Board acknowledges that no VA examiner has specifically found that the Veteran's bilateral ankle injuries, or any other service-connected disabilities, have caused or aggravated his obesity, the Board finds that providing the benefit of the doubt to the Veteran, service connection for sleep apnea is warranted. There is no question that the Veteran has gained a fair amount of weight since his time in service. That is not in dispute. The January 2025 addendum opinion acknowledged that the Veteran's bilateral ankle disabilities may have resulted in a reduction in physical activity. While the examiner did not specifically link the Veteran's weight gain to this loss of physical activity, it stands to reason that providing all benefit of doubt to the Veteran this reduction in physical activity, coupled with the Veteran's July 2024 account of an inability to work out as a result of the bilateral ankles, could easily have resulted in some weight gain. Further, the January 2025, examiner noted that obesity is a well-established risk factor of obstructive sleep apnea. While again, no VA examiner or private examiner has acknowledged a link between these two, the circumstantial evidence points to a relationship between the Veteran's weight gain and his obstructive sleep apnea. Therefore, the Board is willing to provide the fullest benefit of the doubt to the Veteran and acknowledge that his service-connected bilateral ankle disabilities have aggravated his obesity which in turn has either aggravated or caused his obstructive sleep apnea. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Therefore, a nexus has been established connecting the Veteran's service-connected bilateral ankles and his sleep apnea. Accordingly, the third element of secondary service connection has been met and the claim is granted. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.