Garner: Sleep Apnea and Obesity

 Garner v. Tran, Case Number 18-5865, decided January 26, 2021 involves whether obesity from depression can serve as a cause for service connection on a secondary basis for sleep apnea.

The veteran was service connected for various physical pains and as a result also major depressive disorder and was seeking service connection for sleep apnea. A physician noted the veteran was obese and also that pain interfered with the veteran's normal daily activities and resulted in decreased physical capacity.  However, an examiner noted his obstructive sleep apnea was less likely than not aggravated beyond its natural progression by his mood disorder because it was related to the collapse of his oropharyngeal tissue.

The veteran argued it was reasonably raised that his service connected physical ailments caused or aggravated his obesity. 

The court noted:

In January 2017, VA's Office of General Counsel issued a precedential opinion addressing the status of obesity for the purposes of establishing entitlement to service connection. VA. Gen. Coun. Prec. 1-2017 (Jan. 6, 2017) [hereinafter G.C. Prec. 1-2017] ***

The General Counsel noted that obesity per se is not a disease or injury, and therefore, may not be service connected on a direct basis. G.C. Prec. 1-2017 at 1, ⁋ 1. However, the General Counsel determined that "[o]besity may be 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)."

 

***

The opinion discusses the hypothetical case of a veteran whose service-connected back disability causes obesity due to lack of exercise; the obesity in turn leads to hypertension. G.C. Prec. 1-2017 at 9, ⁋ 14. To decide

entitlement to secondary service connection in such a case, the General Counsel advises that the Board would be required to resolve (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether obesity, as a result of the service-connected disability, was a substantial factor in causing the claimed secondary disability, hypertension; and (3) whether

hypertension would not have occurred but for obesity caused by the service-connected back disability. Id. at 9-10, ⁋15. Affirmative answers to these questions would support a determination of service connection for hypertension secondary to the veteran's back disability.

Id. at *7-8.

The court then noted:

In Walsh, we held that the General Counsel opinion requires the Board to consider aggravation in addition to causation in the context of claims where a theory of secondary service connection, with obesity as an intermediate step, is explicitly raised by the veteran or reasonably raised by the record. 32 Vet.App. at 307. Taken together, our holding in Walsh and the General Counsel's opinion illustrate the mechanism by which obesity as an intermediate step could result in secondary service connection; however, they do not provide guidance regarding what factual circumstances would give rise to claims for secondary service connection via this theory.

Id. at *8.

The Court stated:

we note that considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step may include, but are not limited to, mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability.

Id. at *8-9.

However, in this case, the Court determined while their was evidence of weight gain since service and obesity, there is not evidence linking the weight gain to his orthopedic conditions and resulting mobility limitations or depression.  Id. at a *9.

But, the Court then looked at the adequacy of the VA examinations that discussed sleep apnea and depression.  The Court concluded they were inadequate in part because they did not discuss aggravation and how depression could impact or aggravate sleep apnea.

This case helps lay a pathway for a successful sleep apnea case based on obesity.

Decision by Chief Judge Bartley and joined in by Judges Meredith and Toth. 

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