SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

KRISTIN HADDOCK · 2025 · Case ID: 25004096

DENIED

Summary

The veteran, who served from January 1967 to January 1970, appeals the denial of service connection for obstructive sleep apnea. The veteran contended that his sleep apnea was secondary to his service-connected diabetes mellitus, ischemic heart disease, unspecified anxiety disorder, and related medications, or peripheral neuropathy, arguing that these conditions caused weight gain which, in turn, led to or aggravated his sleep apnea. He also submitted articles suggesting a link between diabetes, heart disease, weight gain, and sleep apnea, and stated he experienced weight gain and sleep difficulties during service. However, the veteran's service treatment records were unremarkable for sleep apnea or related complaints, and he denied significant sleep trouble at separation. Medical evidence indicated obesity was diagnosed around 2009, predating his diabetes diagnosis. Multiple VA examinations concluded that the veteran's sleep apnea was less likely than not related to or aggravated by his service-connected conditions. Examiners noted that obesity, a risk factor for sleep apnea, predated his diabetes and was likely due to lifestyle factors rather than service-connected conditions. They also found his infrequent use of anxiety medication and the nature of his other service-connected conditions did not causally link to his sleep apnea. The Board found the VA opinions persuasive and the evidence weighed against the claim, denying service connection for sleep apnea.

Rationale

Service treatment records are unremarkable for sleep apnea or related complaints.; Obesity, a risk factor for sleep apnea, predated diabetes diagnosis and was likely due to lifestyle factors.; VA examiners opined sleep apnea was less likely than not related to or aggravated by service-connected conditions.; No evidence indicates service-connected conditions caused or aggravated sleep apnea.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-35 078

Full Decision Text

Citation Nr: 25004096
Decision Date: 03/26/25 Archive Date: 03/26/25

DOCKET NO. 18-35 078
DATE: March 26, 2025

ORDER

Entitlement to service connection for obstructive sleep apnea is denied.

FINDING OF FACT

The Veteran's obstructive sleep apnea did not have its onset during active service and is not otherwise etiologically related to such service, and is not caused or aggravated by a service-connected disability including treatment for a service-connected disability.

CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.310 (2024).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from January 1967 to January 1970.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In April 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

In May 2021, October 2021, May 2022, and September 2022, the Board remanded the claim to the AOJ for additional development. The Board denied the instant claim in a February 2023 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2023 order, the Court granted a Joint Motion for Remand (JMR), thereby vacating the February 2023 decision, and remanding the case to the Board for further appellate action consistent with the terms of the JMR. In April 2024, the Board remanded the claim to the AOJ for additional development. The case has since been returned to the Board.

Service Connection - Sleep Apnea

The Veteran contends that his sleep apnea is secondary to his service-connected diabetes mellitus, ischemic heart disease, unspecified anxiety disorder and medication for treatment of such, and/or peripheral neuropathy (service-connected disabilities), to include an intermediate step of weight gain. Specifically, the Veteran has asserted that his service-connected disabilities resulted in weight gain and subsequent sleep apnea diagnosis. He added that his service-connected disabilities, to include an intermediate step of weight gain, may have aggravated existing apneic symptoms before he was formally diagnosed. Further, he submitted two articles indicating that diabetes and/or heart disease was associated with weight gain and sleep apnea. The Veteran also stated that he had weight gain and trouble sleeping during service.

The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to sleep apnea or trouble sleeping. At his October 1969 separation examination, he denied frequent trouble sleeping.

The Veteran's medical history includes a 2009 diagnosis of ischemic heart disease, which was granted service connection effective as of October 2013. Coinciding with the 2009 diagnosis of heart disease, is the first documented report of a medical finding of obesity, which noted the Veteran's body mass index (BMI) as 30.1, with a weight of 214 lbs. See December 2009, VA Treatment Record.

A December 2009 VA treatment record indicated that the Veteran reported that he awakened frequently. In July 2015, he underwent a pre-operative assessment prior to undergoing a panendoscopy. At that time, it was noted that he did not have diagnosed sleep apnea. He reported snoring loudly but denied daytime sleepiness or experiencing apneas witnessed by others. In December 2015, he requested a referral for a sleep study. He stated that he had been asked about it before but did not think he needed it and now felt like he had a problem. In March 2016, he underwent a sleep study, which revealed findings consistent with severe obstructive sleep apnea.

In 2015, the Veteran was diagnosed with type II diabetes. See 2015, Private Medical Records.

In a November 2017 letter from the Veteran's a private physician, Dr. D.C., noted that he suspected that the Veteran's sleep apnea was related to his reported weight gain. However, Dr. D.C. used speculative language, and did not provide a supporting rationale for the conclusion reached. As such, the private medical opinion is inadequate for adjudication purposes and assigned low probative value.

In March 2018, the Veteran was afforded a VA examination. At that time, the Veteran's sleep apnea diagnosis was confirmed. The VA examiner opined that the Veteran's sleep apnea was not
nea.

In 2015, the Veteran was diagnosed with type II diabetes. See 2015, Private Medical Records.

In March 2018, the Veteran was afforded a VA examination. At that time, the Veteran's sleep apnea diagnosis was confirmed. The VA examiner opined that the Veteran's sleep apnea was not caused by his diabetes. The examiner noted that diabetes was not a risk factor for the development of sleep apnea. However, the examiner did not discuss whether weight gain associated with the Veteran's diabetes caused or aggravated his sleep apnea. As the examiner failed to provide an adequate rationale in relation to the facts of the case and consider the contentions of the Veteran, the opinion is inadequate for adjudication purposes and assigned low probative value.

A VA examination was conducted in June 2021. The examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of his service-connected disabilities. The examiner indicated that the Veteran's diabetes and heart disease did not cause his weight gain and that his weight gain pre-existed the diagnosis of diabetes, and likely contributed to it. The examiner also noted that patients with heart disease are routinely instructed to exercise, and that the disability does not cause weight gain. In addition, the examiner noted that the Veteran's sleep apnea preceded his development of peripheral neuropathy and that his peripheral neuropathy had never been so significant as to impede ambulation, thus also not affecting his ability to exercise to manage his weight. The examiner noted that although the Veteran's obesity was a likely a contributor to his sleep apnea, obesity is mainly due to excessive caloric intake and that obesity was present prior to his development of diabetes. The examiner further opined that although weight problems can be exacerbated by a sedentary lifestyle, none of the Veteran's service-connected disabilities precluded exercise or directly affected his weight.

An additional VA medical opinion was obtained in January 2022, at which time the examiner opined that sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner's rationale was that obstructive sleep apnea was caused by repetitive intermittent upper airway mechanical obstruction and there is no mechanism by which anxiety/panic mental health conditions can cause mechanical obstruction. The examiner noted that the issue of oxazepam was interesting because benzodiazepines (the type of medication which oxazepam is) can cause muscle relaxation which can contribute to mechanical upper airway obstruction. However, for this to occur enough so that it would contribute to Veteran's obstructive sleep apnea, he would have to be taking oxazepam every night just before bedtime. In contrast, the Veteran reported that though the time of day when he takes the medication can vary, he is only using it four to six times per year. In sum, his oxazepam usage is far too infrequent for it to be an etiologic contributor to nightly obstructive sleep apnea. The examiner concluded that she was unable to connect Veteran's use of medication for anxiety/panic (specifically oxazepam) to his sleep apnea and otherwise his mental health condition itself was not an etiology for his sleep apnea because there was no established physiologic mechanism by which his mental health condition could cause upper airway obstruction. The examiner also opined that the Veteran's sleep apnea was less likely than not aggravated by his service-connected disabilities. The examiner's rationale was that Veteran's sleep apnea was already in the severe category at the time of his 2016 sleep apnea diagnosis. He was then started on CPAP (continuous positive airway pressure) treatment which has been successful (the most recent CPAP clinic upload of November 2021 shows a treated apnea-hypopnea index (AHI) below 2). Thus, Veteran's sleep apnea had responded quite well to routine treatment. In addition, there was no evidence that he had developed the major complication of sleep apnea (cor pulmonale). The examiner stated that this response to routine treatment showed that Veteran's sleep apnea had not been aggravated since its initial diagnosis in 2016.

In June 2022, a VA examiner opined that the Veteran's service-connected disabilities less likely than not caused the Veteran to gain weight. Additionally, the examiner opined that any weight gain caused by the Veteran's service-connected disabilities less likely than not led to the development of his sleep apnea. In support of this opinion, the examiner stated that weight gain, to the point of obesity, was associated with sleep apnea. The examiner added that obesity was not caused by diabetes or heart disease. Rather, the Veteran's obesity more than likely led to his diabetes and heart disease. The examiner remarked that the Veteran's diabetes, heart disease, and anxiety or medication for such did not impair his ability to exercise and control his weight (prevent obesity). The examiner explained that anxiety disorder and some medications could lead to overeating but in the Veteran's case, not to a significant degree. For these reasons, the examiner did not believe the Veteran's diabetes, heart disease, and anxiety or medication for such caused his obesity that led to his sleep apnea.

An additional addendum VA medical opinion was obtained in November 2022. The examiner reviewed the claims file and relevant medical evidence and opined that the Veteran's sleep apnea was less likely than not caused by his service-connected diabetes, heart disease, diabetic peripheral neuropathy of all four extremities, or anxiety. The examiner's rationale was that obstructive sleep apnea was due to intermittent mechanical upper airway obstruction and there was no known physiologic mechanism by which heart disease could affect the upper airway. Similarly, there was no known mechanism by which diabetes, peripheral neuropathy, or anxiety could cause intermittent mechanical closure of the upper airway. It was noted that the reason for the widespread public discussion between the overlap between diabetes and sleep apnea was because undiagnosed and untreated sleep apnea, particularly when severe, can slow metabolism and may be a (separate) risk factor for later development of diabetes (separate from Agent Orange or obesity). However, the examiner indicated that that potential nexus was not pertinent for this Veteran's claim since it was essentially the opposite of what he was claiming and because the Veteran's diabetes was service-connected via an Agent Orange presumption and because Veteran's diabetes was diagnosed prior to his 2016 diagnosis of sleep apnea. Additionally, the examiner opined that the Veteran's sleep apnea was less likely than not aggravated by his service-connected disabilities. The examiner's rationale was that none of Veteran's service-connected conditions caused his obesity. The examiner noted that the Veteran's obesity pre-existed his diabetes and diabetes was not a cause of obesity; rather, obesity was a risk factor for diabetes, separate from Agent Orange exposure. Similarly, the examiner noted that the Veteran's diabetic neuropathy of all four extremities, his heart disease, and his anxiety disorder did not cause obesity because they did not affect his caloric intake. The examiner noted that the Veteran did not have a diagnosed eating disorder and thus his obesity was due to the very common American lifestyle problem with chronic excessive caloric intake. The examiner stated that while it was true that excessive caloric intake could be somewhat ameliorated by increased physical activity, the Veteran remained physically active. Moreover, the examiner explained that even completely sedentary persons (such as wheelchair bound persons) do not develop obesity unless they eat excessive calories. In sum, the examiner concluded that the Veteran's obesity was not due to his service-connected conditions. The examiner also noted that there is no evidence that the Veteran was obese during active service.

In March 2023, the VA examiner provided an addendum opinion. She noted that although the Veteran contended that he was overweight during service, review of the records indicated that his BMI was in the normal range, a finding which contradicted when his obesity began. The examiner noted that by 2009, he had been diagnosed with ischemic heart disease but was not yet diabetic. His initial 2009 VA primary care visit indicated that his BMI was 30.1, which met the criteria of obesity. Thus, the examiner noted that the available records indicated that obesity occurred prior to the onset of his diabetes and diabetic peripheral neuropathy. Regarding his ischemic heart disease, the examiner noted that the condition required solely a single stent placement and that there was no reason at that point why his heart condition should have prevented exercise. It was noted that the Veteran was diagnosed with sleep apnea in 2015, about six years later, at which point he weighed six pounds more, which
his obesity began. The examiner noted that by 2009, he had been diagnosed with ischemic heart disease but was not yet diabetic. His initial 2009 VA primary care visit indicated that his BMI was 30.1, which met the criteria of obesity. Thus, the examiner noted that the available records indicated that obesity occurred prior to the onset of his diabetes and diabetic peripheral neuropathy. Regarding his ischemic heart disease, the examiner noted that the condition required solely a single stent placement and that there was no reason at that point why his heart condition should have prevented exercise. It was noted that the Veteran was diagnosed with sleep apnea in 2015, about six years later, at which point he weighed six pounds more, which was a nonsignificant change over six years. In sum, the examiner concluded that the Veteran's sleep apnea was not at least as likely as not secondary to his service-connected conditions because none of his service-connected conditions were the cause of his obesity. The examiner explained that there was no known medical mechanism by which any of the Veteran's service-connected conditions would be a cause of the Veteran's sleep apnea and that his obesity was not due to his service-connected conditions because 1) his heart condition did not preclude exercise and did not affect oral intake, 2) because his obesity occurred prior to the diagnosis of diabetes/peripheral neuropathy, 3) because he was service connected for an anxiety disorder and not an eating disorder, and 4) because the record showed that the Veteran was clearly and unmistakably able to lose weight despite his service-connected conditions.

In April 2024, the Board remanded the claim for an additional VA medical opinion. Specifically, the Board requested an additional opinion regarding the Veteran's argument of aggravation in light of an apnea hypopnea index (AHI) reading of 2.1 in 2022. The Board also requested that the examiner provide an explanation for the etiology of the Veteran's sleep apnea in light of the fact that the original identified cause of obesity had subsided. Finally, the Board requested the examiner review and address the abstract articles submitted by the Veteran in April 2021.

In May 2024, the AOJ obtained an additional VA medical opinion. The examiner cited medical literature, which noted that the risk factors for sleep apnea included aging, male gender, elevated BMI, and craniofacial and upper airway abnormalities. The examiner noted that of those risk factors, the Veteran had aging, male gender, elevated BMI, and a predisposing upper airway finding of a Mallampati of IV. (A Mallampati score of IV indicates that a person has an airway that is narrower than usual and an increased chance of obstructive sleep apnea). The examiner noted that the Veteran's BMI was still in the overweight range of 26.63 (as of April 2024), which raised his risk of sleep apnea even though he was no longer in the obese range. The examiner indicated that the foregoing risk factors likely contributed to the Veteran having obstructive sleep apnea.

Regarding aggravation, the examiner indicated that she was able to determine a baseline level of severity of the Veteran's obstructive sleep apnea, noting that a March 2016 sleep apnea noted AHI of 83.9, which was consistent with severe obstructive sleep apnea. It was noted that there was no functional impact due to sleep apnea. In June 2016, a sleep study for CPAP titration noted his CPAP to be at 8 cm (pressure level) with a residual AHI of 8.1/hour. The examiner indicated that it was uncertain whether the current level of severity of the Veteran's obstructive sleep apnea was greater than the baseline. The examiner indicated that the November 2022 VA examination report did not indicate any functional impact due to sleep apnea. Therefore, the examiner indicated that from a functional standpoint, the examination did not support an aggravation of the condition. The examiner also reviewed the AHI findings, which ranged from 0.4 in October 2019, to 2.2 in September 2022. The examiner indicated that it was common for AHI levels to vary over time without a specific cause and that the readings noted, with treatment, were still in the normal range for AHI, which was less than 5. Therefore, the examiner opined that the waxing and waning AHI levels did not confirm an aggravation/worsening of the Veteran's condition in the last few years. The examiner further surmised that if the AHI data were interpreted to support a worsening of sleep apnea since 2021, there was evidence of mask leakage which would affect his residual AHI. The examiner noted that mask leaks can cause a rise in AHI. Therefore, the examiner concluded that any increase
in September 2022. The examiner indicated that it was common for AHI levels to vary over time without a specific cause and that the readings noted, with treatment, were still in the normal range for AHI, which was less than 5. Therefore, the examiner opined that the waxing and waning AHI levels did not confirm an aggravation/worsening of the Veteran's condition in the last few years. The examiner further surmised that if the AHI data were interpreted to support a worsening of sleep apnea since 2021, there was evidence of mask leakage which would affect his residual AHI. The examiner noted that mask leaks can cause a rise in AHI. Therefore, the examiner concluded that any increase in AHI levels was most likely related to mask leak issues and unrelated to his service-connected conditions.

The examiner then addressed whether the Veteran's risk factors for sleep apnea had worsened since 2021. The examiner noted that the Veteran continued to age. The examiner also noted that while frequent/daily sedative use could aggravate sleep apnea, the Veteran continued to report very infrequent use of a sedative for panic attacks, at the rate of use of six pills per year (according to an April 2024 VA treatment record). Therefore, the examiner concluded that it was unlikely that his service-connected psychiatric disability or its treatment aggravated his sleep apnea condition.

Regarding obesity, the examiner noted that obesity was a major risk factor and was noted to be a diagnosis by at least April 2015. The examiner noted, however, that the Veteran's obesity was most likely prior to most of his service-connected conditions being diagnosed. The examiner further noted that his service-connected conditions were diagnosed during the 2016-2024 timeframe and that his BMI had actually gone down over time. It was noted that he lost a significant amount of weight between 2016 and 2024, despite his service-connected conditions. Regarding his ability to exercise, the examiner indicated that based on an extensive review of the chart, by far and away, the largest factor that impaired the Veteran's ability to exercise was his nonservice-connected chronic obstructive pulmonary disease (COPD), which was most likely due to his history of heavy smoking. Furthermore, the examiner noted that the medical literature supported that the main determinant of weight related to caloric intake. The examiner concluded that based on the medical literature, it was less likely than not that the Veteran's service-connected conditions aggravated his sleep apnea.

Finally, the examiner reviewed and addressed the abstract articles submitted by the Veteran in April 2021. Those articles indicated that veterans with obstructive sleep apnea were significantly more likely to be obese, and to have elevated systolic blood pressure and ischemic heart disease. The examiner reviewed the original article and noted that the causation of obstructive sleep apnea by ischemic heart disease nor the causation of ischemic heart disease by obstructive sleep apnea could not be concluded by the report. Rather those with obstructive sleep apnea were more likely to have ischemic heart disease. In other words, while those studies showed correlation between the conditions, they did not show evidence of causation.

Initially, the Board finds that there has been substantial compliance with its remand instructions and may now proceed with a decision on the claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2024, the Board remanded the claim to obtain any outstanding VA treatment records and an additional VA medical opinion regarding the nature and etiology of the Veteran's obstructive sleep apnea. VA treatment records were obtained and associated with the claims file. In addition, a VA medical opinion was obtained in May 2024. The examiner reviewed the claims file, considered the Veteran's contentions, responded the Board's directives, and provided a rationale for her opinion. For these reasons, the Board finds the opinion, along with the other opinions of record, adequate to make a decision on the claim.

In the November 2023 JMR, the parties noted that the Board's February 2023 decision relied upon a November 2022 VA examination report, which the parties asserted was ambiguous as to the issue of whether the Veteran's claimed sleep apnea had been aggravated by service-connected disabilities. See October 2023, JMR (pg. 3). In addition, the JMR directed that the Board must discuss the adequacy of the November 2022 examination report insofar as the examiner concluded that the Veteran remained physically active, despite varied reports of his inactivity.

Initially, in addressing the latter of the two issues raised in the JMR, the Board notes that where there are two permissible views of the evidence, the fact-finder's choice between them is a function of discretion, not a basis for finding error. United States v. U.S. Gypsum Co
VA examination report, which the parties asserted was ambiguous as to the issue of whether the Veteran's claimed sleep apnea had been aggravated by service-connected disabilities. See October 2023, JMR (pg. 3). In addition, the JMR directed that the Board must discuss the adequacy of the November 2022 examination report insofar as the examiner concluded that the Veteran remained physically active, despite varied reports of his inactivity.

Initially, in addressing the latter of the two issues raised in the JMR, the Board notes that where there are two permissible views of the evidence, the fact-finder's choice between them is a function of discretion, not a basis for finding error. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) ("[a] factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (internal quotation marks omitted)); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992).

As to this point, the JMR cited to an August 2019 VA Peripheral Nerves examination report, in which the Veteran conveyed that when walking, there were times that he had to stop because he felt as though he might lose his balance. See August 2019, VA Examination Report (pg. 2); See October 2023, JMR (pg. 3). The JMR also cited to the August 2019 report in referencing that the Veteran "does not walk often." See October 2023, JMR (pg. 3, citing R. at 4598; 4609 (4597-4613 Aug. Peripheral Nerves Conditions Questionnaire)). The report does reflect that the Veteran stated, "I don't walk a lot ... I have a treadmill at home but I don't use it regularly." In addition, the August 2019 examiner found that the Veteran was best suited for work that does not require prolonged standing or walking, which was also cited to within the JMR.

In highlighting the above-referenced notations within the August 2019 report, the JMR posited that the November 2022 examiner failed to reconcile these statements with the finding that "this Veteran remains physically active." The Board disagrees. The information highlighted by the JMR is not in conflict with the examiner's finding that the Veteran "remains physically active," but rather, further supports it. In stating that he does not "walk a lot," it can be interpreted that the Veteran does at least walk some. Can that not be characterized as being "physically active?" In conceding that he owns a treadmill but chooses not to "regularly" use it, it can also be found that he does use it on some occasions. Finally, although someone may be best-suited for work that does not require prolonged walking or standing, it does not follow that they are de facto not physically active. The characterization of the Veteran being "physically active," and the highlighted references within the record are not mutually exclusive. The Board takes judicial notice of the general definition of physical activity, which is any bodily movement produced by skeletal muscles that results in energy expenditure.

Furthermore, records added to the claims file since November 2022 further undermine the argument presented on behalf of the Veteran. September 2023 VA treatment records reflected that the Veteran tolerated exercise well and engaged in activities of walking and fishing. See September 2023, VA Treatment Records.

In this case, the Board finds that the most probative evidence of record weighs against the claim.

To any extent that direct service connection is claimed, the Board finds that service treatment records are silent for complaints of obstructive sleep apnea symptoms. The Veteran was referred for a sleep study in December 2015, and was diagnosed with obstructive sleep apnea in March 2016, more than 45 years after he was discharged from service. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weight against a claim for service connection. Moreover, the Veteran has not presented any supporting argument or evidence in this regard, but rather, has asserted his claim as one for sleep apnea as secondary to his service-connected disabilities.

Regarding secondary service connection, a disability that is caused or aggravated by a service-connected disability shall be service connected. See 38 C.F.R. § 3.310. In this case, the evidence does not indicate that any of the Veteran's service-connected disabilities directly caused or aggravated his sleep apnea. Although the VA examiners noted that frequent/daily use of sedatives, such as oxazepam, can contribute to muscle relaxation, airway obstruction, and obstructive sleep apnea, the
that tends to weight against a claim for service connection. Moreover, the Veteran has not presented any supporting argument or evidence in this regard, but rather, has asserted his claim as one for sleep apnea as secondary to his service-connected disabilities.

Regarding secondary service connection, a disability that is caused or aggravated by a service-connected disability shall be service connected. See 38 C.F.R. § 3.310. In this case, the evidence does not indicate that any of the Veteran's service-connected disabilities directly caused or aggravated his sleep apnea. Although the VA examiners noted that frequent/daily use of sedatives, such as oxazepam, can contribute to muscle relaxation, airway obstruction, and obstructive sleep apnea, the examiners indicated that the Veteran's usage of such medications to treat his service-connected psychiatric disability was too infrequent to have such an effect. There is no medical evidence to the contrary.

In this case, the Veteran's primary argument is that his service-connected disabilities caused or aggravated his obesity/weight gain, which caused or aggravated his sleep apnea. The evidence does indicate that obesity is a risk factor for obstructive sleep apnea and has been identified by the VA examiners as being a contributing factor in the Veteran's case. The Board notes that the Veteran has other known risk factors, including his age, male gender, and predisposing upper airway finding of a Mallampati of IV. Regarding obesity, the Court held that obesity may be considered as an "intermediate step" in a causal chain for service connection on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300 (2020).

The Veteran initially claimed that his obstructive sleep apnea was due to weight gain from his type II, diabetes. See December 2017, E-mail Correspondence. The Board finds that the persuasive evidence of record weighs heavily against this claim. When considering service connection based upon the foregoing, the first inquiry is, necessarily, whether obesity has been caused or aggravated by, a service-connected disability. The second inquiry is whether, but for that obesity, the claimed disability would not have occurred. In the sense of what came first, the chicken or the egg, common sense dispels any notion that a disability claimed as secondary to another could predate it. In other words, where, as here, the obesity existed prior to the disability claimed to have caused it (diabetes), it is a factual impossibility. As previously indicated, the Veteran's BMI as of 2009 was 30.1, with a body weight of approximately 214 lbs. Treatment records from 2009-2015 demonstrate that the Veteran was negative for diabetes up until December 2015. However, during this time, his BMI remained above 30, demonstrating a continuing condition of obesity prior to his diabetes diagnosis.

As to whether the Veteran's diabetes aggravated his obesity, the Board finds that the evidence refutes this argument as well. To the contrary, following the 2015 diagnosis of diabetes, the Veteran has demonstrated considerable weight loss, rather than weight gain. This commendable accomplishment is depicted throughout 8 years of treatment records. At the time of the Veteran's diagnosis of diabetes, his weight was approximately 238 lbs. See January 2016, VA Treatment Records. Although his weight has fluctuated, there were additional factors noted within the record concerning such variances. For example, from March 2016 to July 2016, the Veteran's weight had dropped to 220 lbs. See 2016, VA Treatment Records. However, January 2017 VA records depict that the Veteran's weight had risen to 233.2 lbs. This was noted in light of the Veteran's cessation of long-standing tobacco use. From that date, the Veteran has sustained continued weight-loss, most recently showing a weight of 176.6 lbs. in September 2024.

Overall, from the date of diagnosis and the effective date for service connection of diabetes, the Veteran's medical condition of obesity has markedly improved, rather than demonstrating any support for a theory of aggravation. See 2015-2023, VA Treatment Records; see also March 2016, Rating Decision (granting service connection for diabetes, effective December 14, 2015). The same follows for the service-connected disabilities of ischemic heart disease, peripheral neuropathy of the bilateral upper and lower extremities, unspecified anxiety disorder, erectile dysfunction, and bladder and prostate cancers.

Notably, following the Board's February 2023 decision, and prior to the Court's order, a very thorough addendum report was provided by the November 2022 examiner. See March 2023, Addendum Report. The examiner provided an excellent discussion of the primary contention in this case, i.e., that the Veteran
theory of aggravation. See 2015-2023, VA Treatment Records; see also March 2016, Rating Decision (granting service connection for diabetes, effective December 14, 2015). The same follows for the service-connected disabilities of ischemic heart disease, peripheral neuropathy of the bilateral upper and lower extremities, unspecified anxiety disorder, erectile dysfunction, and bladder and prostate cancers.

Notably, following the Board's February 2023 decision, and prior to the Court's order, a very thorough addendum report was provided by the November 2022 examiner. See March 2023, Addendum Report. The examiner provided an excellent discussion of the primary contention in this case, i.e., that the Veteran's obstructive sleep apnea is due to his obesity, which, the Veteran claims, has been caused by his service-connected disabilities. Alternatively, the Veteran claims that his obstructive sleep apnea is secondary-to (without consideration of the intermediate disability of obesity) his service-connected disabilities of diabetes, mental health disorders, and/ or ischemic heart disease.

In the March 2023 addendum report, the examiner provided a chronological assessment of the Veteran's disabilities, explaining that obesity pre-dated the onset of diabetes and the resulting complications from that condition. In addressing the Veteran's contention that his service-connected diabetes contributed to his obesity, or otherwise aggravated it by affecting his desire to exercise due to foot numbness, the examiner poignantly cited to the fact that the Veteran's BMI decreased between the dates of his 2016 OSA diagnosis and an October 2019 VA physical examination. See March 2023, Addendum Report; see also 2015-2017, VA Treatment Records (reflecting weight increase of approximately 12 pounds between July 2016 (220 lbs.) to March 2017 (232.8 lbs.); but see 2017-2019 VA Treatment Records (noting weight loss of approximately 31 lbs. as of November 6, 2019, with weight recorded at 201.7 lbs.).

The examiner also addressed the argued relationship between the Veteran's mental health disabilities and his obstructive sleep apnea, providing a further rationale for the negative nexus opinion stated within the November 2022 report. The examiner explained that the additional factor of mental health risks leads to an approximate 5 percent increase in incidence of obesity. The examiner also discussed the minimal use of benzodiazepine prescription medication and its muscular relaxation effect in relation to the Veteran's OSA, explaining that the infrequent use would not be a medical cause or contributing factor to OSA.

Furthermore, the May 2024 VA examiner addressed the question of whether the Veteran obstructive sleep apnea had been aggravated beyond its baseline in light of the AHI readings. As noted above, the examiner did not believe the waxing and waning of AHI readings demonstrated an aggravation of the disability, but rather were within normal variances. The examiner further surmised that even if those AHI readings were considered an aggravation of the Veteran's sleep apnea, it was most likely due to mask leakage and less likely due to any of his service-connected disabilities.

In sum, the Board finds the most probative evidence weighs against the claim. As an initial matter, the Board notes that there is no evidence that sleep apnea is directly related to service. The Veteran has not claimed direct service connection and there is no opinion that sleep apnea was incurred during active service and no evidence that it is otherwise etiologically related to his active service, including his report of weight gain and trouble sleeping during service. With regard to secondary service connection, there is no evidence that sleep apnea was caused or aggravated by a service-connected disability, to include medication for treatment of a service-connected disability and weight gain potentially resulting from service-connected disabilities. The various VA examiners opined that the Veteran's sleep apnea was not caused or aggravated by a service-connected disability, to include treatment for a service-connected disability or an intermediate step of weight gain as a result of a service-connected disability. The VA examiners considered the contentions of the Veteran, based their opinions on the relevant medical evidence and lay statements, and provided a thorough rationale for the conclusions reached. Therefore, the Board finds the VA examiners' opinions significantly probative. Furthermore, there are no adequate medical opinions to the contrary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced. However, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and
opinions on the relevant medical evidence and lay statements, and provided a thorough rationale for the conclusions reached. Therefore, the Board finds the VA examiners' opinions significantly probative. Furthermore, there are no adequate medical opinions to the contrary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

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Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Therefore, entitlement to service connection for sleep apnea is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Mishalanie, 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.

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