Citation Nr: 18160441
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-18 701
DATE:	December 26, 2018
ORDER
Entitlement to service connection for sleep apnea, secondary to service-connected lumbar degenerative disc disease (DDD) on a causation basis, is granted.
FINDING OF FACT
The evidence is at least evenly balanced as to whether the Veteran's obstructive sleep apnea was caused by service-connected lumbar DDD. 
CONCLUSION OF LAW
With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for obstructive sleep apnea, as secondary to service-connected lumbar DDD on a causation basis, have been met.  38 U.S.C. §§ 1101, 1112, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from March 1997 to August 2008.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for sleep apnea and morbid obesity.
In December 2018, the Veteran testified during a videoconference hearing before the undersigned.  The transcript from the hearing has not yet been associated with the file, but as the benefit sought is being granted in full, the transcript is not necessary for a decision in this case.  
During the hearing, the Veteran indicated that a grant of service connection for sleep apnea would fully satisfy the appeal.  The claim of obesity was made only as an intermediate step between the service-connected back disability and sleep apnea.  Accordingly, the Board finds the issue of obesity to be intertwined with the sleep apnea claim and adjudication of the single issue of sleep apnea is appropriate.   
Entitlement to service connection for sleep apnea
Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disease or injury.  38 C.F.R. § 3.310(a).  The Veteran is in receipt of service connection for lumbar DDD.
Significantly VA’s General Counsel recently held that obesity may act 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).   VAOPGCPREC 1-2017 (Jan. 6, 2017).  In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disease or injury must have caused the veteran to become obese; (2) the obesity as a result of the service connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service connected disease or injury.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
Service treatment records confirm that the Veteran incurred a back disability and developed obesity.  
In July 2013, Dr. C provided a supporting medical opinion.  He stated that the Veteran had lack of mobility due to his back disability and gained approximately 90 pounds.  This weight gain resulted in morbid obesity and sleep apnea.  
In September 2013, the Veteran was afforded a VA examination.  The examiner confirmed an obstructive sleep apnea diagnosis from a May 2013 sleep study.  She explained that lumbar DDD is unrelated to sleep apnea.  However, the mechanism of sleep apnea is related to obesity.  
In his February 2014 notice of disagreement (NOD), the Veteran reported that obesity was caused by his service-connected lumbar DDD and it caused his sleep apnea.  He explained how his activity was greatly limited due to his back disability and resulted in significant weight gain.  
Upon review, the Board finds Dr. C's July 2013 brief opinion indicating that the Veteran’s lumbar spine DDD and surgery caused his obesity and sleep apnea to be persuasive evidence supporting the Veteran’s assertion.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  This medical opinion confirms the etiological relationship between the Veteran's service-connected lumbar DDD, obesity and his diagnosed sleep apnea.  Based on this opinion, the Board finds that all elements for service connection for obstructive sleep apnea on a secondary, causation, basis have been met.  See VAOPGCPREC 1-2017 (Jan. 6, 2017) (obesity may act 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)).
In contrast, the September 2013 VA examiner did not appear to consider the effects of the Veteran's lumbar DDD on his weight gain, and the relationship between such weight gain and her diagnosed sleep apnea.  As such, the September 2013 VA examiner's opinion is of limited probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning).
Resolving reasonable doubt in the Veteran's favor, the elements for service connection for obstructive sleep apnea, as secondary to the service-connected lumbar DDD, on a causation basis, are all demonstrated; service connection for this disability is therefore warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. D. Simpson, Counsel 

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