Back to BVA DecisionsGRANTEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 15-23 063A
SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)
E. I. VELEZ · 2025 · Case ID: 25012587
Summary
The Veteran, who served from January 1967 to December 1968, appeals the denial of service connection for obstructive sleep apnea (OSA) secondary to service-connected diabetes mellitus type II (DMII). The Board notes that while obesity itself is not a service-connected disability, it can serve as an intermediate step for secondary service connection if the service-connected disability caused obesity, which in turn caused the subsequent disability. The Veteran has a current diagnosis of OSA confirmed in 2001, and service treatment records are silent regarding sleep disability. However, service records do show treatment for a foot ulcer related to DMII, leading to limited mobility and balance issues, and numbness in the legs and hands impacting occupational tasks. A May 2021 VA examination noted activity restrictions due to DMII and its medications, along with weakness impacting occupational tasks. The Board found the May 2021 and June 2024 VA etiology opinions inadequate as they did not address obesity or aggravation by service-connected disabilities. A subsequent June 2025 VA opinion found OSA less likely than not related to DMII, but this opinion was also deemed inadequate as it failed to address the Veteran's specific activity restrictions and the medical literature linking DMII, obesity, and OSA. Given the conflict in competent evidence and the failure of VA opinions to adequately address the specific facts, the Board resolved the reasonable doubt in the Veteran's favor, finding the evidence in approximate balance. Therefore, service connection for OSA secondary to DMII via obesity is granted.
Rationale
Service-connected DMII with complications led to obesity and activity restrictions.; Medical literature supports link between DMII, obesity, and OSA.; Conflicting VA opinions were inadequate; reasonable doubt resolved in Veteran's favor.
Full Decision Text
Citation Nr: 25012587 Decision Date: 10/07/25 Archive Date: 10/07/25 DOCKET NO. 15-23 063A DATE: October 7, 2025 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) secondary to service-connected diabetes mellitus type II (DMII) is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Board finds that the weight of the competent evidence is at least in approximate balance that the Veteran's OSA is related to his DMII, using obesity as an intermediate step. CONCLUSION OF LAW The criteria for service connection for OSA secondary to service-connected DMII have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107, 7104 (2024); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2025). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to December 1968. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal for further development in June 2019, December 2022, November 2023, November 2024, and May 2025. Entitlement to service connection for OSA, to include as secondary to service-connected DMII The Veteran asserts that his OSA is secondary to his service connected DMII, to include as using obesity as an intermediate step. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1-2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When the evidence is in approximate balance in the veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). Service treatment records are silent for any signs, symptoms, or complaints associated with a sleep disability, to include OSA. The Veteran reported that he began experiencing symptoms of sleep apnea around 2000, and the diagnosis of OSA was confirmed via a sleep study in 2001. See March 2001 Medical Treatment Record - Non-Government Facility; May 2021 VA Sleep Apnea Examination. Therefore, the record shows that he has a current diagnosed disability of OSA. The Veteran reported that he has struggled with obesity for many years, and that it escalated after he left service. See May 2008 Third Party Correspondence. An August 2007 buddy statement noted that the Veteran was confined to a mobile wheelchair for 50 minutes of every hour due to an ulcer on his foot and that he suffered from upper extremity The Veteran reported that he began experiencing symptoms of sleep apnea around 2000, and the diagnosis of OSA was confirmed via a sleep study in 2001. See March 2001 Medical Treatment Record - Non-Government Facility; May 2021 VA Sleep Apnea Examination. Therefore, the record shows that he has a current diagnosed disability of OSA. The Veteran reported that he has struggled with obesity for many years, and that it escalated after he left service. See May 2008 Third Party Correspondence. An August 2007 buddy statement noted that the Veteran was confined to a mobile wheelchair for 50 minutes of every hour due to an ulcer on his foot and that he suffered from upper extremity tremors that impacted his ability to perform the activities of daily living. The treatment records show that this ulcer is associated with the Veteran's service-connected DMII. See October 2006 Medical Treatment Record - Non-Government Facility. His provider noted that he had limited mobility and balance of the lower extremities on testing, and he is already service-connected for peripheral neuropathy of the upper and lower extremities secondary to his DMII. Id. A May 2021 VA diabetes examination noted that the Veteran had activity restrictions as a result of his DMII and its associated medications. He was also noted to have complete numbness until just beneath the knees, weakness in the legs and hands that impacted his ability to perform many vital occupational tasks, and a left foot amputation due to his diabetic peripheral neuropathy. See May 2021 VA Diabetic Peripheral Neuropathy Examination. May 2021 and June 2024 VA etiology opinions provided discussion of the direct etiological relationship between the Veteran's OSA, DMII, and service-connected psychiatric disabilities. However, they did not address either obesity or aggravation by the service-connected disabilities. They are inadequate to address the issue on appeal. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995); see also November 2024 Board Remand. A June 2025 VA etiology opinion found that the Veteran's OSA was less likely than not related to his DMII. In so doing, the examiner determined that there was insufficient evidence in medical literature that DMII caused obesity because it did not preclude all forms of exercise. However, the examiner did not adequately address the evidence of the Veteran's specific activity restrictions related to his DMII. See Bailey?v. O'Rourke, 30 Vet. App. 54, 60-61 (2018) (holding that a medical opinion was inadequate as a matter of law because the rationale was based solely on general articles and did not discuss any facts pertaining to Veteran's condition or individual circumstances). The medical evidence specific to the Veteran appears to show that the Veteran does have activity restrictions and functional limitations associated with his DMII, and its complications, which would reasonably be expected to impact his ability to control his weight. Furthermore, the Board's review of medical literature shows that obesity is a commonly associated risk factor for both DMII and OSA. See LEIGH PERRREAULT, MD, FACP, BLANDAINE LAFERRERE, MD, OVERWEIGHT AND OBESITY IN ADULTS: HEALTH CONSEQUENCES, UPTODATE.COM, https://www.uptodate.com/contents/overweight-and-obesity-in-adults-health-consequences (last visited September 23, 2025). This reasonable doubt raised by the conflict between competent evidence must be resolved in the Veteran's favor. There is no other contradictory and competent evidence of record, given that the other medical opinions of record failed to adequately address the issue. The Board does not have sufficient evidence with which to disassociate the Veteran's obesity, DMII, and OSA. (Continued on next page) ? Accordingly, it finds that the weight of the competent evidence is at least in approximate balance that the Veteran's OSA is related to his service-connected DMII, using obesity as an intermediate step. Service connection on a secondary basis is therefore warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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. at least in approximate balance that the Veteran's OSA is related to his service-connected DMII, using obesity as an intermediate step. Service connection on a secondary basis is therefore warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.