SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

CORY M. PICTON · 2025 · Case ID: A25002278

DENIED

Summary

The veteran, who served in the United States Marine Corps from February 1973 to May 1997, appeals the denial of service connection for obstructive sleep apnea (OSA). The veteran claimed OSA was secondary to his service-connected left knee degenerative joint disease (DJD), asserting that the knee condition led to inactivity, weight gain, and subsequently OSA. The Board reviewed the evidence, including a December 2018 private medical opinion and an April 2019 VA examination with a March 2020 addendum. The Board found the private opinion inadequate due to its reliance on general medical literature, lack of direct examination, failure to address contributing factors like tobacco use, and contradictions with VA treatment records. The VA examiner concluded that the Veteran's obesity, a risk factor for OSA, was more likely due to smoking cessation in 2015 rather than his service-connected knee condition, which the Board found more probative. The Board also considered the Veteran's history of smoking cessation and weight gain, supported by VA treatment records, and found no persuasive evidence linking his OSA to his knee disability. The Board denied direct service connection for OSA, finding the Veteran's obesity more likely related to smoking cessation, not service or tobacco use during service. The Board also noted the Veteran is not competent to provide a medical nexus opinion.

Rationale

Private medical opinion found inadequate due to lack of direct examination, overreliance on general medical literature, failure to address contributing factors, and contradictions with VA treatment records.; VA examiner opined Veteran's obesity was more likely due to smoking cessation, a conclusion the Board found more probative.; Veteran's history of weight gain with smoking cessation is well-documented and supported by VA treatment records.; No persuasive evidence linked OSA to service-connected knee disability or inactivity caused by it.; Denied direct service connection as obesity was more likely related to smoking cessation, not service or tobacco use.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210518-160886

Full Decision Text

Citation Nr: A25002278
Decision Date: 01/10/25 Archive Date: 01/10/25

DOCKET NO. 210518-160886
DATE: January 10, 2025

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) is denied.

FINDING OF FACT

The Veteran's OSA is not secondary to service-connected left knee degenerative joint disease (DJD) and is not otherwise related to an in-service injury or disease. Instead, it resulted from obesity attributable to his use of tobacco products.

CONCLUSION OF LAW

The criteria for service connection for OSA due to service or a service-connected left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.300.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Marine Corps from February 1973 to May 1997 with multiple military occupation specialties (MOS), to include Supply Subsistence man.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2021 higher-level review (HLR) rating decision issued by the Agency of Original Jurisdiction (AOJ), a Department of Veterans Affairs (VA) Regional Office (RO).

In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2020 AOJ supplemental claim rating decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to HLR, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Procedural History

On July 23, 2018, the Veteran submitted a VA Form 21-0966, Intent to File a Claim for Compensation. A few months later, he filed a service-connection claim for a respiratory condition, to include obstructive sleep apnea secondary to his service-connected left knee degenerative joint disease "with decreased activity leading to weight gain." See December 2018 VA Forms 21-526EZ, 4138. In May 2019, the AOJ issued a decision, which denied the claim based on the evidence of record at the time.

Within one year of its issuance, in February 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issue most recently addressed in the May 2019 rating decision (i.e., under the modernized review system (AMA)). In March 2020, the AOJ issued the supplemental claim decision, which found that new and material evidence had not been received and denied the claim.

Within one year of its issuance, in December 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: HLR, and requested review of the March 2020 supplemental claim rating decision. In March 2021, the AOJ issued the HLR decision on appeal, which considered evidence of record at the time of the prior March 2020 supplemental claim decision. In doing so, it made an implicit finding that new and relevant evidence had been received. Since the Board is bound by this favorable finding, it will refrain from making the otherwise necessary distinction between when evidence should be considered as relevant versus material. 38 C.F.R. §§ 3.104, 3.156, 3.2500. In any case, the AOJ readjudicated the prior decision and denied the claim on the merits.

The Board finds that the claim has been continuously pursued (or otherwise adjudicated) from the day VA received the Veteran's intent to file. 38 C.F.R. §§ 3.155, 3.400, 3.2500.

Benefit of the Doubt

VA is responsible for determining whether the evidence supports the claim
and relevant evidence had been received. Since the Board is bound by this favorable finding, it will refrain from making the otherwise necessary distinction between when evidence should be considered as relevant versus material. 38 C.F.R. §§ 3.104, 3.156, 3.2500. In any case, the AOJ readjudicated the prior decision and denied the claim on the merits.

The Board finds that the claim has been continuously pursued (or otherwise adjudicated) from the day VA received the Veteran's intent to file. 38 C.F.R. §§ 3.155, 3.400, 3.2500.

Benefit of the Doubt

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin...or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). Although it has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). That is, where the Board is silent as to a specific piece of evidence it must be presumed "that the Board considered this evidence and found it too scant to warrant comment." Robinson v. Peake, 21 Vet. App. 545, 555 (2008). Rather, the analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to it. Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

I. Entitlement to service connection for OSA is denied.

The Veteran contends that his respiratory condition, to include OSA is secondary to his service-connected left knee degenerative joint disease "with decreased activity leading to weight gain." See December 2018 VA Forms 21-526EZ, 4138.

Secondary service connection is appropriate when a service-connected disability causes another disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. The three-element test for secondary service connection requires evidence of (1) a current disability; (2) a service-connected disability; and (3) a causal relationship between the current disability and the service-connected disability. Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is compensable. Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Obesity may be an 'intermediate step' between a service-connected disability and a claimed disability that may be otherwise service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300, 303 (2020); VAOPGCPREC 1-2017 (Jan. 6, 2017). In adjudicating such a claim, the Board must answer (a) whether the service-connected condition caused the veteran to become obese; (b) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the disability for which secondary service connection is sought; and (c) whether the condition for which secondary service connection is sought would not have occurred but for the obesity caused by the service-connected disability. See Walsh at 306-7.

Alternatively, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection on a direct basis requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163,
not have occurred but for the obesity caused by the service-connected disability. See Walsh at 306-7.

The issues on appeal are (A) whether the Veteran has a current respiratory disability that was caused by his service-connected left knee disability, via obesity; or (B) whether it is directly related to service or his use of tobacco products during service.

Although the Veteran has a current respiratory disability (OSA) and the claimed primary disability is service-connected (left knee DJD), the Board concludes that OSA is not related to his service-connected knee disability with obesity as a substantial intermediate step between the two. Instead, as discussed below, the Board finds that the more probative medical evidence shows where the Veteran's obesity and subsequent OSA are linked to tobacco use and smoking cessation.

A. The Board concludes that the evidence of record persuasively weighs against finding that the Veteran's service-connected left knee disability caused him to become obese.

The probative medical evidence against the Veteran's claim includes the April 2019 VA examination and the March 2020 addendum opinion.

The Veteran was afforded an April 2019 VA examination to determine the nature and etiology of his respiratory condition. A questionnaire was completed in conjunction with an in-person examination and records review. The examiner (Dr. D.S.) confirmed a diagnosis of OSA from an August 2018 sleep study. Dr. D.S. described the Veteran's relevant medical history, to include a brief summary of the onset and course:

The onset of the Veteran's symptoms was described as "couldn't fall asleep." He was started on a continuous positive airway pressure (CPAP) machine. "When he uses the device, he is sleeping better." The examiner considered and addressed the impact of the Veteran's service-connected disabilities on his level of physical activity. Although he was limited in climbing stairs and it was painful to walk on level ground due to his left knee, the examiner noted that he was going to the gym. He lifted weights, swam, and did water aerobics there. See April 2019 VA Examination.

The Veteran also had arthritis in his back (nonservice-connected) and has had that problem for a long time. "He can't tie his shoes. He can't bend forward." His back affected his ability to exercise. "He has been working on getting his back stronger. He can't exercise to touch his toes." See April 2019 VA Examination. He was apparently prescribed muscle relaxer medication for his back, as the examiner concluded that this type of medication was not a typical treatment for degenerative joint disease of the knee. See March 2020 VA Addendum Opinion.

The Veteran told the April 2019 VA examiner that he had over 50 jumps in the military and thought it took a toll on his legs. There were no attacks of gout since taking Allopurinol. He tried to watch his food intake and avoided sodas. Notably, he was a former smoker. Diffuse idiopathic skeletal hyperostosis ("DISH") was also noted. Continuous medication was required for control of OSA. He required the use of a breathing device (i.e., continuous use of a CPAP machine). He currently had findings, signs, or symptoms attributable to sleep apnea. "He is sleepy sometimes during the day. He is able to fall asleep better now." See April 2019 VA Examination.

Dr. D.S. opined that the Veteran's OSA was less likely caused by his service-connected knee disability. As a caveat to that, they clarified that the issue raised in his claim was whether his OSA was caused by weight gain, which resulted from his inability to exercise, which in turn was due to his service-connected knee disability. Id.

Dr. D.S. concluded that the Veteran's obesity was instead more likely due to smoking cessation. The rationale was that (i) the Veteran had substantial weight gain after smoking cessation in 2015, (ii) weight gain is a known consequence of smoking cessation due to alteration of metabolism and change in appetite or taste, and (iii) there was insufficient medical evidence to indicate that the Veteran's obesity was due primarily to the left knee condition
OSA was less likely caused by his service-connected knee disability. As a caveat to that, they clarified that the issue raised in his claim was whether his OSA was caused by weight gain, which resulted from his inability to exercise, which in turn was due to his service-connected knee disability. Id.

Dr. D.S. identified obesity as a major risk factor for OSA, to include other factors such as advancing age and craniofacial and upper airway soft tissue abnormalities. At the same time, they appreciated the medical complexity of the issue at hand: "The causes of obesity are multifactorial, including genetics, maternal factors, sedentary lifestyle, diet, exercise, medication associated, and underlying medical and psychological conditions." Id.

Although Dr. D.S. found where the Veteran's left leg would give out and walking described as a challenge (July 2017 VA Examination), they observed no reference to limitation of exercise caused by left knee symptoms in primary care and rheumatology notes. Additionally, they pointed out other medical conditions that were active, to include back pain and foot pain, which could also affect his ability to exercise. Contrary to the Veteran's assertion, Dr. D.S. concluded that he was able to exercise. They noted that he had a gym membership and reported doing water aerobics and weightlifting. See April 2019 VA Examination; see also January 2020 VA Progress Note ("Patient is working out regularly").

For these reasons, Dr. D.S. concluded that the Veteran's obesity was more likely related to weight gain contemporaneous with smoking cessation in 2015. See April 2019 VA Examination. The Board finds Dr. D.S.'s opinion highly probative because it is consistent with the relevant medical evidence and its conclusion is supported with sound rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000).

For example, in September 2015, the Veteran was seen by his VA primary care physician (Dr. T.H.) with complaints of weight gain. He reported that he had been gaining a lot of weight in the last couple of months - almost 20 lbs. - since January 2015. Apparently, he quit smoking at the beginning of 2015 and started to eat more. Therefore, his treating physician concluded that this most likely contributed to the weight gain. See September 2015 VA Primary Care Attending Note.

The Board finds the Veteran's medical history of weight gain with smoking cessation well-documented. A July 1992 service treatment record (STR) listed him as a smoker. "Just got back from leave last week, had to go on emergency leave due to house burning down." See July 1992 STR. A November 1994 STR shows where he attended a smoking cessation class "1 of 4." The day before, he presented to "BAS asking for nicotine patch." During the same period, he weighed 175 with a goal weight of 165 lbs. See November 1994 STRs. A month later, a military clinician noted, "continue to encourage diet control, smoking cessation." See December 1994 STR. During his 20-year military career, the Veteran's weight fluctuated from 145 to 190 lbs. See STRs, Enlistment, Periodic, and Separation Examinations (1976 - 1996). The Board finds that this evidence strongly supports the Veteran's propensity for weight gain with smoking cessation.

The evidence in support of the Veteran's claim includes a December 2018 private medical opinion. The records reviewer (G.U., ARNP) opined that the Veteran's weight gain was related to his service-connected left knee disability and that without his weight gain his OSA would not have occurred.

The Board finds that the December 2018 private medical opinion is inadequate because of (1) the absence of a direct examination, (2) overreliance on general medical literature without specific application to the Veteran's case, (3) failure to address other potential contributing factors, and (4) contradictions with VA treatment records.

First, the private medical opinion was based solely on a records
the Veteran's propensity for weight gain with smoking cessation.

First, the private medical opinion was based solely on a records review. There was no in-person examination or telephonic interview with the Veteran. While a records review may provide some basis for a medical opinion, the absence of a direct clinical evaluation limits the probative value of the conclusions reached, as the reviewer did not have the opportunity to observe the Veteran's physical condition, assess relevant clinical findings, or verify the accuracy of reported symptoms.

Second, the private medical opinion extensively cites general medical literature regarding the relationship between musculoskeletal conditions, weight gain, and OSA. Generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive.'" Mattern v. West, 12 Vet. App. 222, 228 (1999) (quoting Sacks v. West, 11 Vet. App. 314, 317 (1998))) (emphasis added).

Moreover, such general medical literature is even less probative where, as here, there is a medical opinion in the record finding that there was no nexus between the Veteran's current disability and service-connected disability and offering an alternative explanation for the current disability based on facts specific to the claim. Cf. id. at 228 (explaining that medical treatise evidence "can provide important support when combined with an opinion of a medical professional") (emphasis added).

Here, the private medical opinion lacks such specificity and relies heavily on generalizations. While the studies cited in the opinion may have provided context, they did not establish a specific nexus between the Veteran's left knee disability, his associated weight gain, and the development of his OSA. Medical literature alone cannot substitute for specific clinical findings or objective evidence demonstrating that the Veteran's OSA was caused or aggravated by his service-connected left knee disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that most of the probative value of a medical opinion comes from its reasoning and that "[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

Third, the private medical opinion does not adequately address other potential contributing factors to the Veteran's OSA, such as his history of tobacco use, morbid obesity unrelated to his knee disability, and other medical conditions (i.e., nonservice-connected back pain and foot pain). The but-for causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction. See?Spicer?v. McDonough,?61 F.4th 1360, 1366 (Fed. Cir. 2023). By focusing exclusively on the left knee disability and weight gain, the opinion fails to consider the Veteran's complete medical history, thereby limiting its reliability.

Finally, the Veteran's VA treatment records do not consistently document significant limitations in mobility directly attributable to the left knee disability that would result in substantial weight gain. As noted by the April 2019 VA examiner (Dr. D.S.), the Veteran worked out regularly. See March 2020 VA Addendum Opinion. Additionally, while the Veteran has a documented history of obesity, there is no indication in the records that treating providers attributed his obesity primarily to his left knee disability. This inconsistency further undermines the credibility of the private medical opinion.

For these reasons, the Board finds the December 2018 private medical opinion inadequate and affords it no probative value.

The Veteran believes that his OSA is due to inactivity and obesity caused by his service-connected left knee disability. However, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the
Opinion. Additionally, while the Veteran has a documented history of obesity, there is no indication in the records that treating providers attributed his obesity primarily to his left knee disability. This inconsistency further undermines the credibility of the private medical opinion.

For these reasons, the Board finds the December 2018 private medical opinion inadequate and affords it no probative value.

The Veteran believes that his OSA is due to inactivity and obesity caused by his service-connected left knee disability. However, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the probative medical evidence.

Accordingly, entitlement to service connection for OSA as secondary to a service-connected left knee disability is denied.

B. The Board concludes that the evidence of record persuasively weighs against finding that the Veteran's OSA is directly related to service.

The issue of whether the Veteran's OSA was incurred in or caused by service was raised by the evidence. See November/December 1994 STRs (in-service smoking cessation and weight gain).

For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. 38 C.F.R. § 3.300. As discussed, the April 2019 VA examiner opined that the Veteran's obesity was more likely related to smoking cessation and the Board finds that opinion more probative.

(Continued on next page)

Accordingly, entitlement to service connection for OSA on a direct basis must be denied. 38 C.F.R. § 3.300.

Cory M. Picton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Skinner

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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