Citation Nr: 1736638	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-03 461A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for obesity, to include as secondary to service-connected bilateral knee disabilities.

2.  Entitlement to service connection for diabetes mellitus (diabetes), to include as secondary to service-connected bilateral knee disabilities.

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


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel


INTRODUCTION

The Veteran had active service in the Army from July 1988 to July 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2016.  A transcript of that hearing is of record.

In April 2017, the RO granted service connection for an acquired psychiatric disability.  This represents a complete grant of his appeal in regard to this claim.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  This issue is no longer before the Board.  

In July 2016, the Board remanded the Veteran's claims for further development.  The Board is satisfied that there was at the very least substantial compliance with its remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-157 (1999).  

The issue of entitlement to service connection for a total rating based on individual unemployability due to service-connected disability (TDIU) has been raised most recently by the record in an August 2017 application for a TDIU, but this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue, and the issue is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).


FINDINGS OF FACT

1.  Obesity is not recognized by VA as a disease or a disability for compensation purposes.

2.  The weight of the evidence is against a finding that the Veteran's diabetes is due to or the result of his active service, due to his service-connected bilateral knee disabilities, or aggravated by his service-connected bilateral knee disabilities.

3.  The Veteran's OSA originated during active service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for obesity have not been met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016).

2.  The criteria for service connection for diabetes have not been met.  38 U.S.C.A §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016).

3.  OSA was incurred in active service.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claims at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records (STRs), VA treatment records, and private treatment records have been obtained.  Additionally, the Veteran testified at a hearing before the Board in May 2016.

The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions and grounded her opinions in the medical literature and evidence of record.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 
 
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disability which is aggravated by a service connected disability.  

In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509 (1998).


Obesity

The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection.  Accordingly service connection may not be granted for obesity.  Additionally, obesity cannot be the underlying basis for service connection.  That is to say, obesity is not an in-service incurrence, and, therefore, service connection may not be granted for a separate disability medically linked to in-service obesity.  Additionally as obesity is not a disability per se, service connection may not be granted for another disability rating proximately caused by obesity.  Nevertheless, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis.  In order to meet this criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity.  VAOPGCPREC 1-2017 (January 6, 2017).

The Veteran testified that his obesity was due to the inability to exercise, which was the result of his service-connected bilateral knee disabilities.  However, the VA general counsel has determined that obesity is not a disorder subject to service connection, and the evidence of record does not show that obesity is a manifestation of a separately-diagnosed disability.

In May 2017, a VA examiner reviewed the Veteran's claims file.  The examiner reported that the Veteran's obesity was not a disability.  The examiner reported that obesity was multifactorial and based both on genetic and behavioral factors.  The examiner reported that the Veteran's obesity appeared to be based on the Veteran's behavior as his self-imposed sedentary activity and inability to adjust dietary pattern to activity level.  In addition, the examiner reported that the Veteran's obesity occurred after his separation from service.  The examiner reported that the Veteran's obesity was not caused or aggravated his service-connected bilateral knee disabilities but that the Veteran's obesity appeared to be due to his behavior.   The examiner reported that while the Veteran stated he was unable to lose weight due to his service-connected bilateral knee disabilities, there were multiple methods to achieve weight reduction and that the Veteran's lifestyle choices were the cause of his obesity.

Furthermore, the Federal Circuit has held that the rating schedule consists of both the ratings and the injuries for which the ratings are provided, and that review of the content of the rating schedule is indistinguishable from review of what should be considered a disability.  See Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004); see also Byrd v. Nicholson, 19 Vet.App. 388, 392-94 (2005) (holding that the Court could not hear the appellant's challenge that periodontal disease should constitute a disease for VA compensation purposes because it would require the Court to review the content of the rating schedule).  The Board does not dispute that the Veteran is obese; however, obesity is not recognized by VA as a disease or a disability for compensation purposes.

Service connection can only be granted for a disability resulting from disease or injury.  See 38 U.S.C.A. §§ 1110, 1131.  Obesity is a finding which may be associated with an underlying disorder, which has not been found in this case.  It is not a disability for which service connection can be granted.  As such, service connection for obesity is not warranted.

Diabetes

The Veteran filed his service connection claim for diabetes in September 2010, which was denied by a July 2011 rating decision.  The Veteran asserts that his diabetes is due to his active service.  He testified that he started gaining weight due to his inability to exercise because of his service-connected bilateral knee disabilities, which resulted in him being diagnosed with diabetes in March 2002.

The Veteran's STRs do not contain any complaints, treatment, or diagnosis for diabetes.  At his June 1991 separation examination, he had normal findings.

The record contains no evidence establishing the Veteran's diabetes was diagnosed in active service, within one year of active service, or are due to an event or injury during his active service.

The Veteran's medical treatment records after his separation show that he was diagnosed with diabetes in the early 2000s.

As such, service connection on a direct basis for diabetes is not warranted.

Regarding secondary service connection, in December 2016, the Veteran was afforded a VA examination.  The examiner reviewed the Veteran's claims file, interviewed the Veteran, and conducted a physical examination.  The examiner opined that the Veteran's diabetes was less likely as not related to his service connected bilateral knee disabilities but provided no rational for her opinion.

In June 2017, the December 2016 VA examiner again reviewed the Veteran's claims file.  The examiner opined that the Veteran's diabetes was less likely than not caused by or due to his service-connected bilateral knee disabilities.  The examiner reported that the risk factors for developing diabetes included ethnicity, family history, obesity, fat distribution, hypertension, dyslipidemia, sedentary lifestyle, smoking, and alcohol consumption.  The examiner reported that the Veteran had history of obesity.  The examiner reported that obesity and sedentary lifestyle were risk factors for diabetes.  The examiner reported that while the Veteran stated he was unable to exercise to lose weight due to his bilateral knee disabilities, there were multiple methods to achieve weight reduction that would not aggravate knee pain.  The examiner concluded that the Veteran's diabetes appeared to more likely be due to other risk factors, which included a family history of diabetes, ethnicity, sedentary lifestyle, smoking history, and obesity.

The Veteran testified that he was not diagnosed with diabetes until 2002, which is many years after he separated from service.  The Veteran has not submitted any medical evidence supporting his contention that diabetes was due to or caused by his active service or due to or aggravated by his service-connected bilateral knee disabilities.

As the VA examiner's opinion regarding secondary service connection and aggravation is consistent with the evidence of record, it is given great probative weight.  Moreover, there is no other competent medical evidence of record to refute the opinion of the VA examiner.  Thus, the Board finds that the Veteran's diabetes was not due to or aggravated by his service-connected bilateral knee disabilities. 

Regarding the Veteran's own assertions that his diabetes was due to or aggravated by his service-connected bilateral knee disabilities, the Board finds that this is not competent evidence.  While the Veteran may be competent to describe the symptoms he experiences, he lacks the medical training and expertise to, for example, determine whether diabetes was aggravated (that is whether the underlying internal disability permanently worsened).  See Jandreau v. Nicholson, 492 F. 3d. 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court).  Therefore, the record contains no competent evidence supporting secondary service-connection or aggravation of the Veteran's diabetes.

Accordingly, the Board finds that the weight of the evidence is against the claim and entitlement to service connection for diabetes is denied.  

Obstructive Sleep Apnea

The Veteran's STRs do not show any complaints, treatment, or diagnosis for OSA during his active service. 

 In January 2010, the Veteran underwent a sleep study and was diagnosed with OSA in January 2010.  The Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis of OSA, or any other sleep or respiratory disorder.  

He was first evaluated for OSA in November 2011, and a polysomnography established OSA. 

At the May 2016 hearing, the Veteran credibly testified that he started having OSA symptoms during his active service.  He testified that his wife was unable to sleep due to his OSA symptoms.  He testified that his symptoms progressively worsened, he eventually underwent a sleep study.

In April 2016, the Veteran's wife credibly reported that he would snore and stop breathing during his active service.  She reported that it sounded as if he was choking in his sleep and gasping for air.  She reported that he would be tired in the mornings, was irritable, and would sometimes fall asleep.

The testimony of the Veteran and the reports of his wife are given great probative weight.  Both are competent to report symptoms of OSA, such as stopping breathing during sleep and daytime fatigue, as they are capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  There is no reason to doubt their credibility.  

While a VA examiner provided a negative opinion as to the etiology of the Veteran's sleep apnea, the examiner misconstrued the testimony by the Veteran and his spouse, such that the opinion is not given any weight.

As such, when weighing the evidence of record, the Board finds that at most the evidence for and against the Veteran's claim is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor.  Accordingly, the Veteran's claim for service connection for OSA is granted.






	(CONTINUED ON NEXT PAGE)

ORDER

Service connection for obesity is denied.

Service connection for diabetes is denied.

Service connection for OSA is granted.



____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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