SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

STEVEN D. REISS · 2026 · Case ID: 26000253

GRANTED

Summary

The Veteran, an Army veteran who served from December 1986 to January 1993, including service in the Southwest Asia Theater of Operations, appeals the denial of service connection for obstructive sleep apnea, prostate cancer with benign prostatic hypertrophy, and diabetes mellitus type II. The Board noted that the Veteran's claims for sleep apnea and prostate cancer were previously remanded and subsequently granted by the RO effective August 10, 2022, under the PACT Act. However, the Board found these issues remained on appeal for the period prior to that date. The Board determined that the Veteran's sleep apnea and prostate cancer were directly related to in-service toxic exposure risk activities (TERA), citing favorable VA medical opinions from April 2024 and May 2023, which established a direct nexus. For diabetes mellitus type II, the Veteran claimed direct service connection due to TERA exposure, secondary connection due to service-connected disabilities (psychiatric and sleep conditions), or as a result of medications for those conditions. While acknowledging negative nexus opinions for direct connection, the Board found competent and credible evidence, specifically from July 2018 VA treatment records noting medication side effects, that the diabetes was at least partially caused by the Veteran's service-connected psychiatric and sleep conditions. Applying the benefit of the doubt doctrine due to approximate equipoise, service connection for diabetes mellitus type II was granted on a secondary basis. All three conditions were granted service connection.

Rationale

Current diagnosis of obstructive sleep apnea; In-service toxic exposure risk activity (TERA) conceded; Favorable VA medical opinion establishing direct nexus

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

09-33 514

Full Decision Text

Citation Nr: 26000253
Decision Date: 01/08/26 Archive Date: 01/08/26

DOCKET NO. 09-33 514
DATE: January 8, 2026

ORDER

Service connection for obstructive sleep apnea, from November 4, 2015, to August 10, 2022, is granted.

Service connection for prostate cancer with benign prostatic hypertrophy, from November 4, 2015, to August 10, 2022, is granted.

Service connection for diabetes mellitus type II is granted.

FINDINGS OF FACT

1. The Veteran's obstructive sleep apnea was the result of his in-service hazardous environmental exposure.

2. The Veteran's prostate cancer with benign prostatic hypertrophy was the result of his in-service hazardous environmental exposure.

3. The Veteran's diabetes mellitus type II is proximately due to and caused by his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§?1110, 1131, 1154(a) 5107(b); 38 C.F.R. §§?3.102, 3.303.

2. The criteria for service connection for prostate cancer with benign prostatic hypertrophy have been met. 38 U.S.C. §§?1110, 1131, 1154(a) 5107(b); 38 C.F.R. §§?3.102, 3.303.

3. The criteria for service connection for diabetes mellitus type II have been met. 38 U.S.C. §§?1110, 1131, 1154(a) 5107(b); 38 C.F.R. §§?3.102, 3.303, 3.310.?

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from December 1986 to January 1993, to include service in the Southwest Asia Theater of Operations from January 1991 to April 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from the respective May 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) that adjudicated the Veteran's November 4, 2015, claim.

These matters were previously before the Board on seven occasions in April 2014, August 2016, April 2019, March 2021, November 2021, December 2022, and September 2023. Most recently, in the September 2023 decision, the Board remanded the matters of entitlement to service connection for obstructive sleep apnea, diabetes mellitus type II, and a recurrent genitourinary disability, to include benign prostatic hyperplasia, for further development.

While this case was in remand status, in the July 2024 rating decision, the RO granted entitlement to service connection for benign prostatic hyperplasia, as associated with residuals of prostate cancer, rated as 40 percent disabling effective August 10, 2022, and granted entitlement to service connection for obstructive sleep apnea, other than insomnia, rated as 50 percent disabling effective August 10, 2022. The RO granted service connection for these issues pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). See 38 U.S.C. § 1168; see also Pub. L. No. 117-168, 136 Stat. 1759 (2022).

The Board finds that the matters remain on appeal for the period prior to August 10, 2022, and will be addressed herein. See Johnson v. Collins, 38 Vet. App. 151 (2025) (holding that a pending appeal is not rendered moot by a subsequent award of service connection based on a liberalizing law); see also Concepcion-Maldonado v. Collins, 38 Vet. App. 294 (2025) (holding that a Legacy appeal seeking service connection is not automatically moot by virtue of an Appeals Modernization Act (AMA) rating decision awarding the same benefit).

Service Connection

Establishing service connection generally requires 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 Shedden v. Principi,?381 F.3d 1163?(Fed. Cir. 2004).??????

Service connection may
based on a liberalizing law); see also Concepcion-Maldonado v. Collins, 38 Vet. App. 294 (2025) (holding that a Legacy appeal seeking service connection is not automatically moot by virtue of an Appeals Modernization Act (AMA) rating decision awarding the same benefit).

Service Connection

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. ?38?C.F.R. §?3.303(d).??????

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. ?38?U.S.C. §?7104(a); Baldwin v. West,?13?Vet. App.?1?(1999); see?38?C.F.R. §?3.303(a).??????

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied. ?38?U.S.C. §?5107.? When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.??????

To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim.? Lynch v. McDonough,?21 F.4th 776 (Fed. Cir. 2021) (en banc).??????

The Board must determine the value of all evidence submitted, including lay and medical evidence.? Buchanan v. Nicholson,?451 F.3d 1331?(Fed. Cir. 2006).? The evaluation of evidence generally involves a 3-step inquiry.? First, the Board must determine whether the evidence comes from a "competent" source.? The Board must then determine if the evidence is credible, or worthy of belief.? Barr v. Nicholson,?21?Vet. App.?303?(2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).??????

The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.? The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus.? Davidson v. Shinseki,?581 F.3d 1313, 1316?(Fed. Cir. 2009); Layno v. Brown,?6?Vet. App.?465, 469?(1994).? Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation."? Barr v. Nicholson,?21?Vet. App.?303, 308-09?(2007); Petitti v. McDonald,?27?Vet. App.?415, 427-28?(2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation).??????

In making all determinations, the Board must fully consider the lay assertions of record.? A layperson is competent to report on the onset and recurrence of symptoms.? Layno v. Brown,?6?Vet. App.?465, 470?(1994) (a Veteran is competent to report on that of which he or she has personal knowledge).? Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.? Davidson v. Shinseki,?581 F.3d 1313, 1316?(Fed. Cir. 2009); Jandreau v. Nicholson,?492 F.3d 1372, 1376-77?(Fed. Cir. 2007
470?(1994) (a Veteran is competent to report on that of which he or she has personal knowledge).? Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.? Davidson v. Shinseki,?581 F.3d 1313, 1316?(Fed. Cir. 2009); Jandreau v. Nicholson,?492 F.3d 1372, 1376-77?(Fed. Cir. 2007).??????

1. Service connection for obstructive sleep apnea, prior to August 10, 2022, is granted.

2. Service connection for prostate cancer with benign prostatic hypertrophy, prior to August 10, 2022, is granted.

The Veteran contends that his obstructive sleep apnea and prostate cancer with benign prostatic hypertrophy are due to various environmental toxins while serving in the Southwest Asia Theater of Operations.

As provided above, the Board notes that these matters were most recently before the Board in September 2023 when they were remanded for additional development. During the pendency of the appeal, a July 2024 rating decision granted service connection effective August 10, 2022. The Board finds that these matters remain before the Board, and that the issue of service connection for benign prostatic hypertrophy is now merged with the Veteran's service-connected prostate cancer. Concepcion-Maldonado v. Collins, 38 Vet. App. 294, 297 (2025); Johnson v. Collins, 38 Vet. App. 151 (2025); see also July 2024 codesheet.

The July 2024 rating decision awarded service connection for these matters as being directly related to the Veteran's military service, pursuant to the PACT Act. The PACT Act became effective on August 10, 2022.

Any award of service connection granted based on the PACT Act may not have an effective date prior to August 10, 2022. The PACT Act, among other things, expanded the scope of presumptions of exposure to herbicide agents for veterans who served in certain locations.

However, the critical inquiry in this case is whether the Veteran's obstructive sleep apnea and prostate cancer with benign prostatic hypertrophy are directly related to his service.

The Board notes that the Veteran filed a claim for service connection for obstructive sleep apnea on November 4, 2015, and a claim for service connection for benign prostatic hypertrophy on December 10, 2007, which were denied in the respective June 2008 and May 2016 rating decisions. See December 2007 and November 2015 VA Form 21-526EZ.

Here, the evidence of record reflects that the Veteran was diagnosed with obstructive sleep apnea and prostate cancer with benign prostatic hypertrophy. See June 2016 and August 2016 private treatment records; see e.g., March 2007 to July 2024 VA treatment records.

In addition, the RO has conceded toxic exposure risk activity during service based on the Veteran's service in the Southwest Asia Theater of Operations from January 1991 to April 1991. See May 2023 TERA memorandum; see also July 2024 rating decision.

In the April 2024 VA medical opinion, the examiner opined that the Veteran's obstructive sleep apnea was at least as likely as not caused by the indicated toxic exposure risk activities, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. It was stated that the Veteran's exposures could cause nose and throat irritation and shortness of breath, resulting in the development of sleep apnea, i.e., the Veteran's obstructive sleep apnea is etiologically related to an in-service injury.

In the April 2024 VA medical opinion, the examiner opined that the Veteran's recurrent genitourinary disability to include benign prostatic hyperplasia, other than prostate cancer residuals is at least as likely as not proximately due to the Veteran's prostate cancer. Whereas, in the May 2023 VA medical opinion, the examiner opined that the Veteran's prostate cancer was at least as likely as not caused by the indicated toxic exposure risk activities, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. It was stated that the Veteran's prostate cancer was at least as likely
iologically related to an in-service injury.

The May 2023 and April 2024 VA medical opinions were the basis for the award of service connection for obstructive sleep apnea and prostate cancer with benign prostatic hypertrophy in the July 2024 rating decision. The May 2023 and April 2024 VA medical opinions, although generated due to the provisions of the PACT Act, provide direct service connection opinions based on the Veteran's TERA exposure while serving in the Southwest Theater of Operations.

In light of the foregoing, to the extent the May 2023 and April 2024 VA medical opinions related the Veteran's disabilities to his TERA exposure while in-service, the Board finds that the examiner provided a direct service connection nexus between the Veteran's TERA exposure, i.e., his in-service injury, and his diagnosed obstructive sleep apnea and prostate cancer with benign prostatic hypertrophy. Therefore, service connection for obstructive sleep apnea and prostate cancer with benign prostatic hypertrophy should have been granted on a direct basis and the effective date of the PACT Act was irrelevant.

In sum, there is a current diagnosis of obstructive sleep apnea, and prostate cancer with benign prostatic hypertrophy, conceded exposure in-service, and a VA examination establishing a causal relationship between the Veteran's obstructive sleep apnea and prostate cancer with benign prostatic hypertrophy and in-service exposure. As the three elements of service connection are met, the Veteran's claim is granted on a direct basis and warranted for the entire period on appeal, i.e., for the period prior to August 10, 2022.

3. Service connection for diabetes mellitus type II is granted.

The Veteran seeks service connection for his diabetes mellitus type II. The Veteran's record has advanced multiple theories as to why his diabetes mellitus type II is related to service, to include his service in the Persian Gulf War, secondary service connection brought on by his service-connected disabilities, or as due to his medications required for his service-connected disabilities, and his participation in a toxic exposure risk activity.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.? See?38 U.S.C. § 1110;?38 C.F.R. § 3.303.? A veteran seeking compensation under these provisions must establish three elements: "(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."? Saunders v. Wilkie,?886 F.3d 1356, 1361?(Fed. Cir. 2018) (quoting Shedden v. Principi,?381 F.3d 1163, 1167?(Fed. Cir. 2004)).?

Service connection may be established for a disability that is proximately due to or the result of a service-connected disability. ?38 C.F.R. § 3.310?(a).? Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.?38 C.F.R. § 3.310; El-Amin v. Shinseki,?26?Vet. App.?136?(2013); Allen v. Brown,?7?Vet. App.?439?(1995).?

Here, the evidence of record reflects that the Veteran has been diagnosed with diabetes mellitus type II. See August 2024 VA examination.

As the finder of fact, the Board concludes that the first and second element of service connection can be reasonably conceded.? The critical question in this case is the etiology of the diagnosed diabetes mellitus type II.

The Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record. Here, the Board
3.310; El-Amin v. Shinseki,?26?Vet. App.?136?(2013); Allen v. Brown,?7?Vet. App.?439?(1995).?

Here, the evidence of record reflects that the Veteran has been diagnosed with diabetes mellitus type II. See August 2024 VA examination.

The Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record. Here, the Board finds that entitlement is warranted in that his diabetes mellitus type II is secondarily caused by the medication used to treat his service-connected disabilities, to include his psychiatric and sleep conditions.

The Board notes that the Veteran has been afforded numerous examinations and opinions to determine the nature and etiology of his diabetes mellitus type II.

While the Board acknowledges the negative nexus opinions of record, there is no VA medical opinion that addresses whether the Veteran's diabetes mellitus type II is proximately due to or caused by the medication the Veteran's uses to treat his service-connected disabilities. However, in the July 2018 VA treatment records, the examiner noted that side effects to the Veteran's medication prescribed for his service-connected psychiatric and sleep conditions include issues with diabetes mellitus.

As such, in its role as a finder of fact, the Board finds that the competent and credible evidence shows that the Veteran's diabetes mellitus type II is caused, at least in part, by his service-connected disabilities. See Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).?

Here, the competent and credible evidence is approximately balanced as to whether service connection for diabetes mellitus type II is warranted based on diabetes mellitus type II being proximately due to his service-connected disabilities.

In light of the foregoing, the Board finds that service connection for diabetes mellitus type II is warranted on a secondary basis.? See 38 C.F.R. §?3.310(a).? The benefit of the doubt doctrine applies.? 38 U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).? As such, service connection for diabetes mellitus type II as caused by the Veteran's service-connected disabilities is warranted.?

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Nettles, Associate Counsel

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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