SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, who served in the U.S. Army National Guard from May 2001 to September 2001 and January 2005 to July 2006, appeals the denial of service connection for mixed sleep apnea. The Veteran claimed this condition was secondary to his service-connected back disability and/or PTSD, with obesity as an intermediate step. The Veteran asserted that PTSD led to emotional eating and weight gain, while the back disability limited mobility and exercise, both contributing to his sleep apnea. The Board acknowledged the favorable findings that the Veteran has mixed sleep apnea and that his back disability and PTSD are service-connected. However, the Board found the evidence weighed against a secondary service connection. VA medical opinions indicated no established etiological basis for obstructive sleep apnea due to PTSD, and that while obesity is a risk factor, it is neither sufficient nor necessary for OSA development. The examiner noted the Veteran's BMI was 28.5 (overweight) at the time of his sleep study, not obese (BMI > 30), and that central sleep apnea, a component of his mixed sleep apnea, is unrelated to weight gain or service-connected conditions. The Board found the VA opinions adequate and probative, particularly the one addressing obesity as an intermediate step. The Veteran's lay testimony regarding his symptoms and diagnosis was considered competent, but the Board found him not competent to offer opinions on the etiology of his sleep apnea. Ultimately, the Board concluded the evidence persuasively weighed against a secondary service connection, denying the claim.

Rationale

No established etiological basis for OSA due to PTSD.; Obesity is a risk factor for OSA, but not sufficient or necessary.; Veteran's BMI was overweight (28.5), not obese (>30).; Central sleep apnea component unrelated to weight gain or service-connected conditions.; Evidence persuasively weighs against secondary service connection.

Full Decision Text

Citation Nr: A24048650
Decision Date: 08/21/24	Archive Date: 08/21/24

DOCKET NO. 211028-195548
DATE: August 21, 2024

ORDER

Entitlement to service connection for mixed sleep apnea, claimed as secondary to service-connected degenerative arthritis of the spine with intervertebral disc syndrome (back disability) and/or posttraumatic stress disorder (PTSD), and to include as due to obesity as an intermediate step, is denied.

FINDING OF FACT

The evidence persuasively weighs against a finding that the Veteran's mixed sleep apnea was caused or aggravated by a service-connected disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for mixed sleep apnea, claimed as secondary to service-connected back disability and/or PTSD, and to include as due to obesity as an intermediate step, have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; VAOPGCPREC 01-17 (January 6, 2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Army National Guard from May 2001 to September 2001 and from January 2005 to July 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision issued by the Agency of Original Jurisdiction (AOJ), wherein the AOJ continued the previous denial of service connection for mixed sleep apnea, claimed as secondary to a back disability and/or PTSD, and to include as due to obesity as an intermediate step.  The May 2021 rating decision was a higher-level review of a February 2021 rating decision. The AOJ made favorable findings that are discussed further herein, by which the Board is bound.  38 C.F.R. § 3.104(c).  

In October 2021, the Veteran timely appealed the decision to the Board by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) and requesting a "Direct Review" of the evidence by a Veterans Law Judge.  In an Appeals Modernization Act (AMA) Direct Review appeal where the rating decision on appeal is a higher-level review, the Board considers the evidence of record at the time of the February 2021 rating decision.  38 C.F.R. § 20.301.  

If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in its decision here.  38 C.F.R. § 20.300.  If the Veteran would like the VA to consider any evidence that was added to the claims file 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.

As an initial matter, the Board notes that in correspondence, dated February 2024, the Veteran's attorney submitted a motion to withdraw representation of the Veteran in the Veteran's matters before VA.  The Board finds that the February 2024 motion for withdrawal of representation did not meet the requirements of 38 C.F.R. § 20.6 and is consequently denied.  38 C.F.R. § 20.6 provides that a representative may not withdraw services in an appeal unless good cause is shown and that such motions must be in writing, include the name of the Veteran, the applicable file number, and the reason why withdrawal should be permitted, along with "a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed."  Here, although in writing and containing the Veteran's name and file number, the Board finds the attorney's explanation that the identified task has been completed is not good cause for withdrawal.  Furthermore, the motion did not include the requisite signed statement affirming that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant.  The Board notes that in the motion for withdrawal, the attorney stated that there were no outstanding appeals.  While the Board acknowledges that VA Form 21-22a Appointment of Claimant's Representative (VAF 21-22a) was received by VA in October 2023, which is
 postage prepaid, to the appellant, setting forth the address to which the copy was mailed."  Here, although in writing and containing the Veteran's name and file number, the Board finds the attorney's explanation that the identified task has been completed is not good cause for withdrawal.  Furthermore, the motion did not include the requisite signed statement affirming that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant.  The Board notes that in the motion for withdrawal, the attorney stated that there were no outstanding appeals.  While the Board acknowledges that VA Form 21-22a Appointment of Claimant's Representative (VAF 21-22a) was received by VA in October 2023, which is after the Veteran's submission of the October 2021 NOD related to the instant appeal, the VA Form 21-22a, Appointment of Individual as Claimant's Representative, did not limit the scope of representation.  Thus, the February 2024 motion to withdraw representation was subject to the provisions of 38 C.F.R. § 20.6, which it failed to satisfy.  Based on this information, the Board finds that at the present time, withdrawal of representation is not permitted, and the associated motion is denied.      

Entitlement to service connection for mixed sleep apnea, claimed as secondary to service-connected back disability and/or PTSD, and to include as due to obesity as an intermediate step.     

The Veteran contends that service connection for mixed sleep apnea is warranted as secondary to service-connected back disability and/or PTSD, with obesity as an intermediate step.  Specifically, in the Veteran's November 2020 claims application, he contends that his service-connected PTSD causes him severe depression and anxiety, resulting in him being an emotional eater and gaining a significant amount of weight.  He further contends that his service-connected back disability limits his mobility, which caused him to gain weight due to an inability to perform physical activities.  Similarly, in correspondence received in November 2020, the Veteran states that his private provider advised him that his mixed sleep apnea was "likely brought on by both a mix of the weight gain and weight distribution changes from an inability to exercise from [his] back injury; as well as other issues related to PTSD."  The Veteran also explained how prior to acquiring his back disability, he was an amateur body builder who was very active, engaging in activities such as water/snow-skiing, adult sports league, and daily weight training for exercise and stress relief.  The Veteran stated that since his back disability, he is no longer able to perform these activities because simple, routine movements are enough to cause a sudden flare-up, which leaves him temporarily incapacitated.        

Service Connection

Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability.  See 38 C.F.R. § 3.310(a).  When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability.  Id.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.

In an opinion issued by VA's General Counsel, the General Counsel determined that obesity cannot be service connected on a direct basis and obesity cannot qualify as an in-service event for service-connection purposes.  However, the General Counsel determined that obesity may serve as an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a).  VAOGCPREC 1-2017.  In such case, that evidence would need to reflect: (1) a service-connected disability or disabilities that caused the veteran to become obese; (2) the obesity was a substantial factor in causing another disability; and (3) the disability would not have occurred but for the obesity caused by the veteran's service-connected disability or disabilities.  Id.

In a decision by the United States Court of Appeals for Veterans Claims (Court), it held that while obesity is not itself recognized as a disability by the Secretary of VA, it may be recognized as an intermediate step between a service-connected disability and a disability claimed as secondary to that service-connected disability, based on the service-connected disability causing or aggravating the obesity.  See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020).

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the claim for service connection for mixed sleep apnea.  The reasons for the Board's decision follow.

In the May 2021 rating decision, the AOJ found that the December 
 the United States Court of Appeals for Veterans Claims (Court), it held that while obesity is not itself recognized as a disability by the Secretary of VA, it may be recognized as an intermediate step between a service-connected disability and a disability claimed as secondary to that service-connected disability, based on the service-connected disability causing or aggravating the obesity.  See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020).

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the claim for service connection for mixed sleep apnea.  The reasons for the Board's decision follow.

In the May 2021 rating decision, the AOJ found that the December 2020 VA-contracted examination report documented a diagnosis of mixed sleep apnea, a combination of obstructive and central sleep apnea, and that the claimed primary disabilities, a back disability and PTSD, were service connected.  The Board is bound by these favorable findings.  38 C.F.R. § 3.104(c).  As such, the first element of secondary service connection, a current disability, is met.  To the extent that secondary service connection requires a service-connected disability, the facts establish that this requirement is met as well. 

However, as to evidence that the Veteran's current mixed sleep apnea was proximately caused or aggravated by his service-connected back disability and/or PTSD, the Board finds that the facts persuasively weigh against this element of secondary service connection.  Specifically, in a December 2020 VA-contracted medical opinion, the examiner opined that sleep apnea and PTSD were two, distinct and separate medical conditions.  The examiner acknowledged that research has established an association between the two conditions due to the effects of disrupted sleep on the outcome measures of health and well-being in veterans. Nonetheless, the examiner stated that to date, there was no established etiological basis for obstructive sleep apnea (OSA) due to PTSD.  The examiner explained that the pathophysiology of OSA was related to loose floppy tissue occluding the upper airway during the relaxation of sleep.  Whereas PTSD, the examiner stated, disrupted sleep due to frequent nighttime awakenings related to psychological and emotional issues, nightmares, anxiety, depression and a low threshold for being startled awake.  To this end, the examiner stated that OSA had not been found to be proximately due to PTSD and cited medical literature in support of this negative nexus opinion.

Similarly, in a February 2021 VA-contracted medical opinion, the examiner opined that there was no etiological relationship between OSA and the Veteran's service-connected back disability and/or PTSD.  With respect to the Veteran's contentions that his sleep apnea was proximately due to weight gain and obesity caused by the service-connected back condition and/or PTSD, the examiner stated that this theory was not supported by medical evidence.  The examiner noted that although weight gain/obesity was a risk factor for developing OSA, it was neither sufficient nor necessary for the development of the condition.  The examiner stated that most, but not all people with OSA, were obese.  The examiner explained that there were individuals with a normal body mass index (BMI) who were diagnosed with OSA.  Relying on the December 2020 private sleep study, the examiner noted that the Veteran, who was diagnosed with obstructive sleep apnea, was not obese.  At the time the private sleep study was performed, the Veteran had a BMI of 28.5, which was below the CDC guidelines defining obesity as a BMI over 30.  The examiner stated that a BMI between 25 < 30 was considered in the overweight range.  The examiner acknowledged that in the United States of America, weight gain was a major health problem and that many conditions were associated with obesity.  The examiner further acknowledged that an individual's BMI was a corollary of numerous diseases, including: OSA, diabetes, atherosclerosis, hypertension, and joint problems.  However, the examiner found that while a BMI in the obesity range increased the risk of developing these conditions and others, it was not considered a causal factor.  In fact, the examiner explained, weight gain and the propensity for health problems were determined by genetic and metabolic factors, caloric intake, and caloric expenditure. 

Regarding musculoskeletal conditions such as the Veteran's service-connected back condition, the examiner noted that while limiting mobility, these conditions were not necessarily a prerequisite for weight gain.  As an example, the examiner noted that paraplegics, who have limited mobility, were still able to exercise and maintain an appropriate BMI.  Moreover, the examiner found that the Veteran's service- connected back condition did not preclude all forms of exercise.  The examiner specifically indicated that there were alternative methods of exercise, including recumbent bicycles and
, it was not considered a causal factor.  In fact, the examiner explained, weight gain and the propensity for health problems were determined by genetic and metabolic factors, caloric intake, and caloric expenditure. 

Regarding musculoskeletal conditions such as the Veteran's service-connected back condition, the examiner noted that while limiting mobility, these conditions were not necessarily a prerequisite for weight gain.  As an example, the examiner noted that paraplegics, who have limited mobility, were still able to exercise and maintain an appropriate BMI.  Moreover, the examiner found that the Veteran's service- connected back condition did not preclude all forms of exercise.  The examiner specifically indicated that there were alternative methods of exercise, including recumbent bicycles and water-based aerobics, that alleviate weight bearing and joint problems during exercise.  The examiner further noted that there were other pathophysiological features involved with OSA that were independent of weight gain or obesity: such as, craniofacial structural abnormalities, upper airway soft tissue caliber/compliance and resistance, upper airway muscle activity and responsiveness to airway pressure, and changes in ventilatory motor output during sleep.  The examiner stated that diet and nutritional practices could also be utilized to minimize weight gain with musculoskeletal problems.  The examiner cited lifestyle coaching and the use of behavioral management techniques as resources found to be effective at preventing and/or treating obesity.  

Furthermore, the examiner determined that it was at least as likely as not that the Veteran would have developed sleep apnea independent of his weight gain.  The examiner based that determination on the December 2020 private sleep study, which noted that the Veteran's sleep apnea was due to mixed components of obstructive and central sleep apnea.  The examiner found that the risk factors and the pathophysiology of central sleep apnea were unrelated to the Veteran's service-connected back disability, PTSD, or weight gain.  As such, the examiner found that there was no established medical nexus between the Veteran's current mixed sleep apnea and his service-connected back disability or PTSD, with obesity/weight gain serving as an intermediate step.  In formulating these opinions, the examiner relied on medical literature.    

Based on the above, the Board finds that the evidence persuasively weighs against a finding that the Veteran's mixed sleep apnea was caused or aggravated by his service-connected back disability or PTSD, to include as due to obesity as an intermediate step.

The Board finds that collectively, the December 2020 and February 2021 VA-contracted medical opinions are adequate and probative because the examiners reviewed the claims file and/or performed an in-person examination, provided medical opinions supported by rationale based upon the specific facts of the Veteran's case and applicable medical literature.  The Board particularly affords high probative value to the February 2021 VA-contracted medical opinion because the examiner addressed the issue of secondary service connection while thoroughly addressing the Veteran's contentions related to obesity.     

The Board notes that in correspondence received in November 2020, the Veteran stated that his private provider advised him that his mixed sleep apnea was "likely brought on by both a mix of the weight gain and weight distribution changes from an inability to exercise from [his] back injury; as well as other issues related to PTSD."  The Board further notes that the Veteran is competent to report his observable symptoms related to his sleep apnea and service-connected back disability and PTSD, Layno v. Brown, 6 Vet. App. 465, 470 (19940, and to report a medical condition in which he has been diagnosed, Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  However, the Veteran is not competent to offer opinions on the etiology of his mixed sleep apnea and its relationship with his service-connected back disability and PTSD.  Jandreau, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The cause of sleep apnea and the interrelationship between sleep apnea and musculoskeletal conditions and PTSD require specialized training for determinations as to diagnosis and causation, and therefore, are not susceptible to lay opinions.  While the Veteran asserts that the statement regarding the positive relationship between sleep apnea, his service-connected back disability and PTSD, and obesity was offered by his private doctor, the Veteran has not submitted a medical opinion conveying this information.   

As previously noted, the Board relies on the competent medical evidence of record in finding that the Veteran's mixed sleep apnea was not caused or aggravated by his service-connected back disability or PTSD, to include as due to obesity or weight gain as an intermediate step. 

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection on a secondary basis for mixed sleep ap
 specialized training for determinations as to diagnosis and causation, and therefore, are not susceptible to lay opinions.  While the Veteran asserts that the statement regarding the positive relationship between sleep apnea, his service-connected back disability and PTSD, and obesity was offered by his private doctor, the Veteran has not submitted a medical opinion conveying this information.   

As previously noted, the Board relies on the competent medical evidence of record in finding that the Veteran's mixed sleep apnea was not caused or aggravated by his service-connected back disability or PTSD, to include as due to obesity or weight gain as an intermediate step. 

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection on a secondary basis for mixed sleep apnea, is warranted.  Rather, the evidence persuasively weighs against the secondary service-connection claim.  The benefit-of-the-doubt doctrine is therefore not for application.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).  The claim for service connection for mixed sleep apnea, claimed as secondary to service-connected back disability and/or PTSD, and to include as due to obesity as an intermediate step, is denied.   

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P.C.

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.