Citation Nr: 23010030 Decision Date: 02/16/23 Archive Date: 02/16/23 DOCKET NO. 17-40 188 DATE: February 16, 2023 ORDER Service connection for sleep apnea, on a secondary basis, is granted. FINDING OF FACT The Veteran's sleep apnea is caused by his service-connected disabilities with obesity serving as an intermediate step. CONCLUSION OF LAW The criteria for secondary service connection for sleep apnea, on a secondary basis, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1985 to May 1987. The case is on appeal from a September 2017 rating decision. Most recently, in October 2022, the Board remanded the claim for further development. Service connection for sleep apnea. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The claimant is entitled to the benefit-of-the-doubt when the competing evidence is in "approximate balance" or "nearly equal." That is, exact equipoise is not required to trigger the favorable benefit-of-the-doubt rule. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). Analysis The Veteran contends that his currently diagnosed sleep apnea had its onset during service or is secondary to service-connected disability. See VA Form 9. Pursuant to the October 2022 Board remand, a VA opinion was obtained later that month. The October 2022 opinion states that the Veteran's sleep apnea is due to obesity. The opinion notes that a study published in the Journal of the American Medical Association (JAMA) states that the single strongest risk factor for obstructive sleep apnea (OSA) is an obese body habitus, which results in an anatomical crowding of one's airway due to excess soft tissue from a large neck circumference. The study also noted that the prevalence of OSA progressively increases as the body mass index (BMI) and associated markers (e.g., neck circumference, waist-to-hip ratio) increase. Additionally, a study by the Mayo Clinic was noted to reflect that OSA occurs when muscles at the back of one's throat relax and temporarily restrict or block airflow as one sleeps, which may lead to disrupted sleep. The study also noted that in most people, a neck size greater than 16 inches is a sign of excess fat in the neck area, which may contribute to crowding and narrowing of one's breathing tube, making obstruction or blockage of one's airway while sleeping all the more likely. Consistent with this etiology, the Veteran was classified medically as morbidly obese and was noted to have a well-documented history of weight issues. Weight loss was noted to have been specifically recommended as part of the Veteran's sleep apnea treatment plan. The opinion states that the Veteran's morbidly obese body habitus was caused by excess caloric intake. Obesity is not a "disease" or "disability" for VA purposes and, therefore, obesity is not eligible for service connection on a direct or secondary basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). See also VAOPGCPREC 1-2017 (Jan. 6, 2017). That is, obesity also cannot qualify as an in-service "event" to warrant service connection for another disability because obesity occurs over a period of time. What is legally clear is that obesity can serve as an "intermediate step" between a current disability and a service-connected disability for purposes of secondary service connection if it is found that (1) a service-connected disability caused or aggravated the veteran to become obese; (2) this obesity was a substantial factor in causing the current disability; and (3) the current disability would not have occurred but for the obesity caused or aggravated by a service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020). If these three criteria are answered in the affirmative, then the claimed current disability may be service connected on a secondary basis. Id. Stated another way, obesity can constitute an "intermediate step" in showing secondary service connection, i.e., that service connection is warranted when a service-connected disability causes or aggravates obesity, which in turn causes the claimed disability. Id. Finally, the Court most recently held that to reasonably raise the theory of secondary service connection via obesity as an "intermediate step," there must be some evidence in the record that draws an association or suggests a relationship between a veteran's obesity, or weight gain resulting in obesity, and a service-connected disability. Conversely, incidental references in the record to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement. The Court provided a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step. See Garner v. Tran, 33 Vet. App. 241, 248 (2021). In this case, the evidence shows that the Veteran's service-connected osteochondritis of the talus/right ankle sprain and tendonitis, neurological disorder with sensory changes below the knees, and emphysema, along with lumbar spine degenerative disc disease (DDD) with spinal stenosis, right knee chondromalacia, and depression, all of which are secondary to the service-connected right ankle disability, caused or aggravated the Veteran's weight gain, leading to morbid obesity. In that respect, the Board notes that the March 1985 enlistment examination shows that he weighed 190 pounds and had a medium build. See October 2009 STR - Medical. Although a history of being overweight was noted, the examiner did not report any defects or diagnoses. In addition, the March 1987 Physical Board Proceedings indicate that he weighed approximately 190-195 pounds at that time, and he noted having regained the 15-20 pounds he had lost during boot camp since having been on limited duty as a result of physical impairments (right ankle arthritis, obstructive lung disease, and neurosensory complaints). See February 1988 Physical Evaluation Board Proceedings testimony. See also February 1988 Military Personnel Record (reflecting excused from physical training and field assignments). In October 1987, after his medical discharge, VA clinical records reflect that the Veteran weighed 247 pounds. Further, a November 1987 VA examination with respect to the right ankle disorder, a neurological condition, and obstructive lung disease notes that the Veteran was very obese and weighed 250 pounds. He walked with a right leg limp and used a cane on even ground to support his right ankle/foot. The examination notes that the Veteran's presentation was strange in that he walked with an equinus deformity of the right foot and was unable to dorsiflex the foot in heel-toe walking, which caused him to walk on the toes of the right foot producing a consistent limp. Possible causes of the Veteran's weight gain of 65 pounds in the past year included inactivity and eating too much. The Board notes that, although obesity generally occurs over an extended period of time, in this case, obesity is not noted in the Veteran's service treatment records (STRs) or at the time of the March 1987 Physical Board Proceedings. In addition, various external and internal factors and processes have been noted to affect the development of obesity. See VAOPGCPREC 1-2017 (citing Scientific Decision Making, Policy Decisions, and the Obesity Pandemic, 88 MAYO CLINIC PROCEEDINGS at 596). Additionally, October 2007 VA treatment records note that the Veteran was distressed about his orthopedic problems and that pain due to his service-connected right ankle disability and right knee chondromalacia secondary to his right ankle disability affected his energy level to the extent that he had to force himself to do day-to day activities. Further, VA treatment records in March 2017 note that the Veteran weighed 279 pounds and a BMI of 39.5. Additionally, November 2017 records reflect worsening obesity and limited exercise as a result of pain due to service-connected lumbar spine DDD with spinal stenosis, as well as right lower extremity pain. In addition, records in May 2019 state that obesity was worsening, noting less activity and problematic chronic pain. Although the Veteran walked on a treadmill, inability to regularly walk for more than 10 minutes was noted, and complete rigidity of the right ankle was reported. Records in November 2021 reflect that the Veteran weighed 293 pounds, and a BMI of 40 was noted on VA examination in January 2022. Further, records associated with file subsequent to the October 2022 Board remand state that pain in the lower extremities severe low back pain limited exercise and his BMI was 44. Second, there is persuasive evidence of record demonstrating that the Veteran's weight gain from morbid obesity, secondary to his service-connected disabilities discussed above, was a substantial factor in causing the current sleep apnea, which would not have occurred but for the morbid obesity. That is, the Veteran's service-connected disabilities caused or worsened his obesity, which in turn was a substantial factor in the onset of his currently diagnosed sleep apnea. The increase in his BMI and/or associated markers resulted in sleep apnea. As noted, the October 2022 VA opinion specifically states that diet and exercise was part of the treatment plan to control sleep apnea by way of treating his morbid obesity. The opinion notes that if the Veteran's sleep apnea was due to anything other than obesity, weight loss and his use a continuous positive airway pressure (CPAP) machine would be of no benefit and not the first-line treatment. The Board notes that, although September 2019 VA treatment records reflect that obesity contributed to diabetes mellitus control, diabetes was diagnosed in approximately 2000, after obesity was reported. See May 2009 Medical Treatment Record Government Facility. In addition, and although the effective dates for right shoulder strain, right wrist sprain with tendinitis, right collateral ligament sprain of the metacarpophalangeal joints in the right hand with painful motion of the little, ring, index, and long finger and thumb, right shoulder strain with bicipital tenonitis, trochanteric pain syndrome of the right hip with limited extension, flexion, and abduction are all after the date of the decision on appeal, service connection was granted as secondary to the service-connected right ankle disability. The Board notes that, a December 2018 VA examination states that the pressure exerted from weight bearing on the right side while holding a cane had a significant impact on the joints involved in the upper extremities. In addition, service-connected radiculopathy of the bilateral lower extremities is secondary to service-connected lumbar spine DDD. The Board notes that, although the Veteran attributed his sleep apnea to the service-connected neurological condition with sensory changes below the knees, and although testing in July 1987 was suggestive of peripheral neuropathy, the October 2019 VA opinion states that sleep apnea is unrelated to the neurological condition with sensory changes below the knees, noting that the neurological symptoms were present during the day and that sleep apnea was clinically diagnosed based on a sleep study in 2017, decades after service. In any case, as the Board is granting service connection for sleep apnea as secondary to service-connected disabilities via obesity as an "intermediate step," that theory need not be further addressed. In sum, the Board finds that the Veteran's sleep apnea secondary to service-connected disabilities via obesity as an "intermediate step." This is particularly so when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for sleep apnea, on a secondary basis, is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.