SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

LEETRA J. HARRIS · 2025 · Case ID: 25008510

DENIED

Summary

The Veteran served from November 1969 to July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision, following a July 2024 remand for addendum opinions. The Veteran initially appealed claims for bilateral hearing loss (BHL) and an increased rating for PTSD. The RO granted service connection for BHL in March 2025, which the Veteran did not appeal. The current appeal concerns the denial of service connection for obstructive sleep apnea (OSA), claimed as secondary to PTSD, diabetes mellitus II, and sciatic nerve peripheral neuropathy. The Board denied service connection for OSA, finding no nexus to service or service-connected disabilities. The Veteran was diagnosed with OSA in December 2021, approximately 50 years after service. Multiple VA examinations were conducted. The January 2022 VA examiner opined no nexus to PTSD and that OSA was not aggravated by PTSD, distinguishing association from causation. The December 2024 and February 2025 examiners also found no nexus, citing the 50-year gap and lack of contemporary symptoms, though the Board found these less probative. The May 2025 examiner found the Veteran's obesity, a factor in OSA, could not be linked to service-connected disabilities without speculation, and noted no proven connection between herbicide exposure and OSA. The Board found the January 2022 opinion most probative, concluding the evidence does not establish a nexus for OSA. Service connection for OSA is denied.

Rationale

Multiple VA examinations provided negative nexus opinions for OSA.; Examiners cited risk factors for OSA and the 50-year gap between service and diagnosis.; The Board found the January 2022 VA examination most probative, noting the distinction between association and causation for PTSD and OSA.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-23 264

Full Decision Text

Citation Nr: 25008510
Decision Date: 06/27/25 Archive Date: 06/27/25

DOCKET NO. 17-23 264
DATE: June 27, 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 disabilities, and is not otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1969 to July 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Veteran also appealed claims seeking service connection for bilateral hearing loss (BHL) and an increased rating for post-traumatic stress disorder (PTSD).

The Board has issued a number of decisions in this appeal. Most recently, in a July 2024 decision, the Board denied increased ratings for PTSD, and remanded the claims seeking service connection for OSA and BHL, directing the RO to obtain addendum VA medical opinions. The RO complied with the Board's remand directives. In a March 2025 rating decision, the RO granted service connection for BHL, and assigned a non-compensable rating, effective May 30, 2012. The Veteran did not appeal this decision. The RO denied service connection for OSA in a May 2025 Supplemental Statement of the Case (SSOC) and that claim alone has now returned to the Board on appeal.

Service Connection

Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).

Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection there must be evidence: (1) of a current disability (for which secondary service connection is sought); (2) of an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). For the purposes of aggravation, the central question is whether any worsening of the nonservice-connected disability is actually due to the service-connected disability, or whether the worsening is due to the natural progression of the disability. 38 C.F.R. § 3.310(b).

The Federal Circuit held in Spicer that the phrase "resulting from" in §1110 had no qualifiers or exceptions, and therefore nothing in the statute suggested an interpretation of "resulting from" narrower than but-for causality. The Federal Circuit found that the but-for causation standard was not limited to a single cause and effect, but rather contemplated multi-causal links, including action and inaction. This applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability.

Entitlement to service connection for OSA

due to the natural progression of the disability. 38 C.F.R. § 3.310(b).

Entitlement to service connection for OSA

The Veteran contends that his OSA is secondary to his service-connected PTSD, diabetes mellitus II (DMII), and bilateral sciatic nerve peripheral neuropathy associated with DMII.

After review of the evidence, the Board finds that service connection for OSA is not warranted.

The Veteran was diagnosed with OSA in December 2021. He is service connected for PTSD, DMII, and neuropathy. As such, the first two elements of service connection on a secondary basis are established. The only question that remains is whether there is a nexus between the Veteran's OSA and his service-connected disabilities.

Upon VA examination in January 2022, the examiner opined that there was no nexus between the Veteran's OSA and his service-connected PTSD. The examiner explained the cause of OSA, namely the narrowing of the upper airway while one is asleep, and the associated risk factors, including old age, brain injury, decreased muscle tone, increased soft tissue around the airway, structural features, nasal congestion, drugs, alcohol, and obesity. Further, the January 2022 examiner opined that the Veteran's OSA was not aggravated beyond its natural progression by his PTSD. The examiner acknowledged articles submitted by the Veteran showing an association between PTSD and OSA, but noted the distinction between said association and causation.

Upon VA examination in December 2024, the examiner opined that there was no nexus between the Veteran's OSA, his service, or his service-connected DMII and neuropathy. Like the January 2022 examiner, this examiner explained some causes of OSA. The examiner then opined that there was no evidence supporting direct service connection, and noted the 50-year gap between discharge and his OSA diagnosis. Additionally, the examiner stated there was no medical literature demonstrating an underlying medical relationship between OSA, DMII, and neuropathy on a causal or aggravation basis.

The RO obtained a brief addendum opinion in February 2025 in which the examiner based their negative nexus opinion on the 50-year gap between discharge and his diagnosis for OSA.

Upon VA examination in May 2025, the examiner opined that although obesity is a factor in causing the Veteran's OSA, he was unable to appropriately address the correlation of the Veteran's obesity to his service-connected PTSD, diabetes, and neuropathy as it is not objectively supported. Specifically, the examiner stated that, "[i]n a case like this, accepting the vet's testimony as fact ignores and overlooks his daily diet/caloric intake, his generic predisposition, daily habits, personal desire to perform [] exercises etc. I cannot correlate his weight gain to any factor with any semblance of certainty." Thus, according to the examiner, it is entirely speculative to opine as to whether the vet gained weight due to inactivity from the service-connected disabilities or simply due to the service connected disabilities.

Here, the Board finds the January 2022 VA examination to be particularly probative as it provides both a clear opinion and supporting rationale.

The Board, however, acknowledges that the December 2024 and February 2025 VA examiners relied heavily upon the lack of contemporary symptoms or passage of time between discharge and diagnosis. The passage of time or a lack of contemporary symptoms is not enough to justify a denial-of-service connection. For this reason, the Board finds these opinions to be less probative than the January 2022 VA examination.

Lastly, the Board finds the May 2025 opinion to be highly probative on the issue of obesity being an "intermediate step" in a causal chain for service connection. See?Walsh?v. Wilkie,?32?Vet. App.?300?(2020). In other words, service connection may be granted on a secondary basis where the claimed disability would not have occurred "but for" obesity caused or aggravated by a service-connected disability. Here, the examiner has credibly opined that the Veteran's obesity cannot be linked to his service-connected disabilities without speculating. Additionally, the VA examiner found that the Veteran's OSA was not connected to his participation in a toxic exposure risk activity (TERA), that
.

To the extent that, in filing a claim for service connection, the Veteran advances his own interpretation that his current disability is related to service, including his service-connected disabilities, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In any event, the probative value of the Veteran's assertions in this regard is outweighed by the probative value of the evidence noted above indicating the Veteran's OSA was not caused in or incurred by service or a service-connected disability.

The Board finds that the evidence does not establish a nexus between the Veteran's OSA, his service, or his service-connected disabilities. In so finding, the Board relies on the VA opinions as indicated herein. Therefore, entitlement to service connection for OSA is not warranted, and the claim is denied.

Leetra J. Harris

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.S.L.

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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