Case 26001800

D. MARTZ AMES · 2026 · Case ID: 26001800

GRANTED

Summary

The veteran, who served from March 1987 to May 1991, appeals the dismissal of a neurological disorder of the left lower extremity and the denial of service connection for obstructive sleep apnea (OSA) and a right hip disability, claimed as secondary to service-connected conditions. The Board dismissed the left lower extremity neurological disorder claim as moot because the RO had granted service connection for left lower extremity radiculopathy with a 10% rating, which fully granted the benefits sought on appeal. For OSA, the Board found service connection warranted, noting the veteran's diagnosis of severe OSA in 2013 and 2016, and the presence of service-connected fibromyalgia, cervical degenerative arthritis, lumbar radiculopathy, lumbar degenerative arthritis, and right knee degenerative arthritis. While acknowledging the veteran's obesity and the examiner's initial negative opinion, the Board found the January 2024 VA opinion's rationale regarding OSA development and obesity to be speculative and lacking adequate support. The Board found the veteran's statements about OSA onset in service and subsequent diagnoses persuasive. For the right hip disability, the Board granted service connection as secondary to service-connected right knee degenerative arthritis and lumbar spine disabilities, mediated by obesity. The Board found the veteran's hip pain began after a knee injury in service, leading to altered gait mechanics and subsequent hip pain, and afforded high probative value to opinions linking the hip pain to the knee injury and obesity. The Board found the Veteran's hip disability secondary to his service-connected knee and lumbar spine disabilities through the intermediate step of obesity.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-19 255

Full Decision Text

Citation Nr: 26001800
Decision Date: 02/09/26 Archive Date: 02/09/26

DOCKET NO. 18-19 255
DATE: February 9, 2026

ORDER

The appeal concerning entitlement to service connection for a neurological disorder of the left lower extremity is dismissed.

Entitlement to service connection for obstructive sleep apnea, as secondary to service-connected disabilities, is granted.

Entitlement to service connection for a right hip disability, as secondary to service-connected right knee degenerative arthritis, is granted.

FINDINGS OF FACT

1. While this appeal was pending, the Department of Veterans Affairs (VA) Regional Office (RO) issued an August 2024 rating decision that granted entitlement to service connection for left lower extremity radiculopathy affecting the sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves with an evaluation of 10 percent effective June 13, 2013, which constitutes a full grant of the benefits sought on appeal.

2. The Veteran's obstructive sleep apnea (OSA) is secondary to his service-connected right knee degenerative arthritis through the intermediate step of obesity.

3. The Veteran's right hip disability is secondary to his service-connected right knee degenerative arthritis and lumbar spine disabilities through the intermediate step of obesity.

CONCLUSIONS OF LAW

1. The criteria for dismissal of neurological disorder of the left lower extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for service connection for obstructive sleep apnea due to the service-connected right knee degenerative arthritis through the intermediate step of obesity is met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for a right hip disability due to the service-connected right knee degenerative arthritis and lower back disabilities through the intermediate step of obesity is met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1987 to May 1991. A Statement of the Case was issued in February 2018. The Veteran then filed an Appeal to the Board in April 2018 with a request for a hearing. A hearing took place before the undersigned Veterans Law Judge in February 2021.

The Board remanded the issues in July 2021 so that addendum opinions may be obtained. A Supplemental Statement of the Case was issued in August 2022. The Board remanded the issues again in November 2022 so that an addendum opinion may be issued that considered the Veteran's obesity as an intermediate step for the claimed conditions. In February 2023, the RO issued a rating decision granting the Veteran entitlement to service connection for right lower extremity radiculopathy (claimed as peripheral neuropathy) with an evaluation of 10 percent effective June 13, 2013. The RO issued a Supplemental Statement of the Claim in December 2024.

Addendum opinions have been issued pertaining to the remaining claims. The Board, therefore, finds that there has been substantial compliance with its prior remand directives.

Service Connection

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 current disability. See Davidson v. Shinseki,?581 F.3d 1313?(Fed. Cir. 2009); Hickson v. West,?12?Vet. App.?247, 253?(1999).

Service connection may also be granted on a secondary basis if the record contains evidence sufficient to establish: (1) a current disability; (2) a service-connected disability; and (3) that the current disability was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310.

Secondary causation exists when, but for the service-connected disability, the nonservice-connected disorder was caused by the service-connected disability in either a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citation omitted
?(1999).

Secondary aggravation exists when the nonservice-connected disability is not caused by a service-connected disability but would be less severe if not for the service-connected disability. Id. at 1364. For example, secondary aggravation may be established when the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability. Id.

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in approximate balance. It is only when the weight of the evidence is against the claim that the claim must be denied. 38?U.S.C. §?5107(b); 38?C.F.R. §?3.102; Gilbert v. Derwinski, 1?Vet. App.?49 (1990).

1. The appeal concerning entitlement to service connection for a neurological disorder of the left lower extremity is dismissed.

In August 2024, after this appeal was perfected to the Board, service connection for left lower extremity radiculopathy affecting the sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves was granted with an evaluation of 10 percent effective June 13, 2013 by the RO. The grant of service connection constitutes a full grant of benefits on appeal pursuant to the service connection criteria under 38 U.S.C. § 1110 and 38 C.F.R. §§ 3.303. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). There are no additional benefits available to the Veteran and no case and controversy remaining before the Board regarding this appealed issue. As such, the appeal must be dismissed.

2. Entitlement to service connection for obstructive sleep apnea is granted.

The Veteran is of the position that he has obstructive sleep apnea as a result of his active service, including secondary to his service-connected disabilities. The Board must also take into consideration obesity as an intermediate step as the medical records note that the Veteran is obese.

In a February 2013 sleep study, the Veteran was diagnosed with severe obstructive sleep apnea - hypopnea syndrome. A February 2016 VA medical note indicates that the Veteran was diagnosed with obstructive sleep apnea in February 2016. Accordingly, the first element of secondary service connection has been met.

The Veteran's service-connected disabilities include fibromyalgia, cervical degenerative arthritis and disc disease, lumbar radiculopathy of the right lower extremity, lumbar degenerative arthritis and strain, left lower extremity radiculopathy and right knee degenerative arthritis. As such, the second element of secondary service connection has also been met.

The evidence includes a November 2021 VA examination wherein it is noted that the Veteran is obese. Obesity can be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC 1-2017. In such cases, the Board considers three issues: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017.

In March 2001, the Veteran was seen at a private medical center. The clinician indicated that the Veteran has been snoring and having apneic spells since approximately 1988 while in service. He had his first sleep study in 2004, and he was diagnosed with sleep apnea and prescribed a continuous positive airway pressure (CPAP) machine. Since then he has had 2 more sleep studies, all
disability caused the veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017.

In March 2001, the Veteran was seen at a private medical center. The clinician indicated that the Veteran has been snoring and having apneic spells since approximately 1988 while in service. He had his first sleep study in 2004, and he was diagnosed with sleep apnea and prescribed a continuous positive airway pressure (CPAP) machine. Since then he has had 2 more sleep studies, all of which confirmed that he had sleep apnea. He stated that he no longer snores as long as he uses his CPAP.

The Veteran was afforded a VA examination in November 2017. He stated that he has been snoring and having apneic spells since 1988 while in service. He had his first sleep study in 2004, was diagnosed with sleep apnea and prescribed a CPAP machine. Since then, he has had 2 more sleep studies, all of which confirmed that he had sleep apnea.

At a November 2021 VA examination, the Veteran was diagnosed with obstructive sleep apnea. He stated that he had restless nights during active service and would awaken frequently. A sleep study was conducted in 2019 and showed that the Veteran had obstructive sleep apnea. The examiner opined that, although there was an acute cough condition in December 1990, the Veteran was treated with a medication for cough and stuffy nose. There was no chronicity of care or treatment. There is objective evidence of severe obesity with the regaining of weight in June 2021. The examiner concluded that the Veteran's obstructive sleep apnea was not related to his active duty service.

The March 2023 VA examiner found that the Veteran's obstructive sleep apnea was not related to his active service and his obesity is not related to his service-connected disabilities but rather as a result of overconsuming calories.

In a March 2023 opinion, an examiner found that the Veteran's obesity was not related to his service-connected condition knee disability. The examiner found that it is related to the Veteran's excessive caloric consumption and not his musculoskeletal conditions. Research shows that obesity can be prevented by a calorie restricted diet. One of the central tenets in obesity prevention and management is caloric restriction. This perspective presents salient features of how calories and energy balance matter, also called the "calories in, calories out" paradigm. Determinants of energy balance and relationships to dietary macronutrient content are reviewed. The examiner concluded that risk for obesity is primarily determined by total calorie intake.

The Veteran was afforded a VA examination in January 2024. The examiner indicated that the toxic exposure risk memo reviewed showed exposure to Camp Lejeune water contamination. The records reviewed showed the risk factors outside of military service including being male, being over age 30, and morbid obesity. The examiner opined that the Veteran's obstructive sleep apnea was not related to the 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. The rationale is that obstructive sleep apnea (OSA) develops when the soft tissues of the oropharynx and tongue collapse back into the airway occluding passage of air. The decrease in oxygenation from the airway occlusion causes a spike in hypertension and the brain signals a startle reflex to awaken the individual to open the airway. The frequent awakenings along with the decreased oxygenation leads to sleep that is not restful. Risk factors for developing sleep apnea include being male, an age of 30 and over, being overweight or obese, narrowed airways, chronic nasal congestion, smoking, drinking alcohol, taking medications that suppress respirations such as opioids and benzodiazepines, men with neck size greater than 17"/women with neck size greater than 16" and family history of sleep apnea. Researchers found no association between exposure to solvents to include gasoline, diesel fuel, paints, varnish and solvents to obstructive sleep apnea. Review of literature finds no evidence of increased sleep apnea from burn pit exposure. Review of literature also reveals no link between Camp Lejeune Contaminated Water and development of obstructive sleep apnea. There is no positive, scientific evidence to link sleep apnea to the toxins listed on the TERA Memo. The examiner further opined that there is no medical evidence that exposure
that suppress respirations such as opioids and benzodiazepines, men with neck size greater than 17"/women with neck size greater than 16" and family history of sleep apnea. Researchers found no association between exposure to solvents to include gasoline, diesel fuel, paints, varnish and solvents to obstructive sleep apnea. Review of literature finds no evidence of increased sleep apnea from burn pit exposure. Review of literature also reveals no link between Camp Lejeune Contaminated Water and development of obstructive sleep apnea. There is no positive, scientific evidence to link sleep apnea to the toxins listed on the TERA Memo. The examiner further opined that there is no medical evidence that exposure to toxins on TERA Memo being a causative factor for sleep apnea. His age of 56 puts him at increased risk for upper airway obstruction due to age-related loosening and progressive laxity of the pharyngeal walls and the throat muscles causing blockage of air movement as he sleeps which is exacerbated by being overweight/obese.

In February 2024, a VA examiner opined that the Veteran's OSA was not related to his active service through the intermediate step of obesity. The examiner opined that, based on a review of the medical information provided, the OSA could have still developed without obesity. While OSA is a risk factor, it is one of many and not the main or primary one. There are many obese patients who do not have OSA. The Veteran's sore joints does not preclude all exercise nor does it preclude dietary changes to prevent obesity.

The Board affords low probative value to the February 2024 VA opinion as it is speculative and lacks adequate rationale.

A VA opinion was issued in May 2024. The examiner opined that the Veteran's obstructive sleep apnea was not related to his active service. The rationale was that there is no service treatment record found relative to sleep apnea. The examiner noted that the earliest treatment record found in file for OSA is a June 2025 sleep study. There is no treatment record found in noting a diagnosis of sleep apnea as due to tinnitus or hearing loss. The examiner reported that tinnitus, hearing loss, and a left ear condition have nothing to do with and does not cause obstructive sleep apnea.

During an August 2024 VA examination, the examiner indicated that the Veteran's OSA began in 2013 and has stayed the same. The examiner opined that there was no good current medical studies or rationale that conclude that the Veteran's lumbar degenerative arthritis and strain have aggravated his OSA beyond its normal progression. The examiner further opined that there is no medical or scientific evidence available that provides an indication of a relationship between development of OSA and a TERA. The risk factors outside of military service, including a genetic tendency for airway anatomy to cause airway closure during sleep, far outweigh the factors identified in the TERA.

The examiner noted that obesity has multiple causes, such as genetics and lifestyle including calorie intake. Studies have recommended moderate exercise to alleviate sore joints and pain due to musculoskeletal disorders. Studies have recommended moderate exercise to alleviate sore joints and pain due to musculoskeletal disorders.

A buddy statement was submitted in March 2018 by A.J. She stated that the Veteran has suffered from sleep problems since he left active service in 1991.

The Board finds that the evidence shows that the Veteran has not been able to engage in exercise due to his service-connected disabilities, including a lumbar spine disability. In a September 2023 VA medical record, it was noted that the Veteran may benefit from skilled physical therapy to address chronic lower back pain. The goals were to improve range of motion, muscle-tendon length, tissue extensibility, gait deviations and decreased tolerance to functional activity performance to assist with improving his quality of life.

In a February 2021 medical record, it was noted that the Veteran had difficulty getting in or out of a car, getting dressed, or going up or down stairs. Numbness or tingling of the lower extremity and back pain were indicated. As noted above, the Veteran is service-connected for these disabilities.

A July 2024 VA medical record indicated that the Veteran is morbidly obese, with obvious signs of sleep apnea and obstructive pulmonary disease. He has pain in his lower back that increases with lateral bending and rotation and some referred pain to the right lower extremity. A separate note that month indicated that he is unable to perform vigorous exercise. An October 2024 VA medical record indicates that the Veteran is morbidly obese and has a history of obesity.

The Board affords high probative value to the portion
or going up or down stairs. Numbness or tingling of the lower extremity and back pain were indicated. As noted above, the Veteran is service-connected for these disabilities.

The Board affords high probative value to the portion of the January 2024 VA opinion in which it was noted that the loosening and progressive laxity of the pharyngeal walls and the throat muscles causes blockage of air movement as he sleeps which is exacerbated by being overweight/obese. As noted above, in July of that year it was also noted that the Veteran is unable to perform vigorous exercise.

The most persuasive evidence is in support of the Veteran's claim. As such, the Board finds that secondary service connection for sleep apnea is warranted.

3. Entitlement to service connection for a right hip disability, as secondary to service-connected right knee degenerative arthritis, is granted.

The Veteran is of the position that he has a right hip disability as a result of his active service, including secondary to his service-connected disabilities.

A March 2022 private medical record notes that the Veteran was diagnosed with primary osteoarthritis of the right hip. In October 2024, a VA medical record indicated that the Veteran had right hip pain. Accordingly, the first element of secondary service connection has been met.

As previously stated, the Veteran's service-connected disabilities include fibromyalgia, cervical degenerative arthritis and disc disease, lumbar radiculopathy of the right lower extremity, lumbar degenerative arthritis and strain, left lower extremity radiculopathy and right knee degenerative arthritis. As such, the second element of secondary service connection has also been met.

The Board has indicated herein that the Veteran is obese as a result of his service-connected disabilities, therefore it will turn to the evidence of record that pertains specifically to his right hip disability.

The Veteran was afforded a VA examination for hip conditions in December 2017. He reported experiencing right hip pain over the years. The Veteran advised that while in service, he sustained an injury to his right knee and wore a brace for several months. He developed an antalgic gait and subsequent pain of the right hip. He stated that while walking he felt like his hip was "locking up" and causing great pain which lasted a few seconds to minutes. The examiner opined that the Veteran's right hip pain was not related to his active service. The right hip pain noted in service was due to a transient misuse of the knee, causing an antalgic gait and secondary pain of the right hip. The present pain described by the Veteran and worsening symptoms are related to a different etiology, which is degenerative disease of both hips. No direct trauma of the hip during service can be found in the records and is more likely related to a long history of obesity.

A May 2018 VA medical record noted that the Veteran had bilateral hip and right knee osteoarthritis which was acute on chronic L4 radiculopathy and right meniscal tear.

A February 2021 private medical record notes that the Veteran has a several year history of right hip pain. The clinician noted that the Veteran injured his knee in the military, and walked with crutches and knee immobilizers. His hip pain began after that. The clinician opined that it is possible that the Veteran's hip arthritis can be related to his original knee injury and altered gait mechanics.

In July 2021, a VA clinician noted that the Veteran's pain was located in the lower back and radiated down to his right hip. An impression showed moderate hip osteoarthritis with progression of degenerative disease. The examiner opined that the Veteran's hip disability was most likely related to his BMI and obesity, rather than being directly related to any exposure type event. That same month, the record includes a notation that the Veteran's pain from his right hip and lower back is exacerbated with activity.

The Veteran was afforded a VA examination for hip conditions in September 2021. He was diagnosed with right hip degenerative arthritis. He advised the clinician that he injured his hip when he injured his knee. He reported restricted walking, squatting and climbing long periods as a result. The VA examiner stated that she was unable give an opinion
. An impression showed moderate hip osteoarthritis with progression of degenerative disease. The examiner opined that the Veteran's hip disability was most likely related to his BMI and obesity, rather than being directly related to any exposure type event. That same month, the record includes a notation that the Veteran's pain from his right hip and lower back is exacerbated with activity.

In a November 2021 opinion, a VA examiner opined that there is no objective evidence of chronicity of care or treatment for a right hip condition. The earliest treatment for the right hip condition was in March 2017 with an injection for diagnosis of osteoarthritis. There is no medical literature that supports arthritis of one joint causing arthritis of another joint, therefore the Veteran's right hip disability is not related to an incident of service (to include a documented right knee injury in 1990.)

The VA examiner also opined that there is no objective evidence of chronicity of care for the Veteran's right hip condition or treatment. The earliest care noted for his right hip is in March 2017. There is no medical literature that support degeneration of one joint incurring degeneration of another joint, therefore the Veteran's right his disability is likely not secondary to his service connected knee disability.

The evidence includes a May 2022 VA opinion in which the examiner stated that medical literature supports right knee osteoarthritis incurring a decreased range of motion to the ankle and hip. The examiner noted that, however, that there is no medical literature that supports right knee osteoarthritis incurring right hip degenerative arthritis which can also incur a decreased range of motion of the hip. The examiner indicated that both diabetes and obesity can incur and increase the risk of degenerative arthritis. There was no sought care or treatment for right hip condition in the service treatment records until approximately 2014 when an MRI of right hip revealed mild degenerative changes. The examiner concluded by finding that the Veteran's right hip disorder (other than residuals of benign tumor removal) was not aggravated beyond its natural progression by his right knee disorder.

The Veteran was afforded a VA examination for hip conditions in March 2023. The examiner found that the Veteran's hip disability is related to the natural process of aging and not obesity. Degeneration of the joints occur naturally with age. The examiner noted that there are two main types of arthritis, osteoarthritis and rheumatoid arthritis, which damage joints in different ways. Osteoarthritis is the most common type of arthritis as it involves wear-and-tear damage to a joint's cartilage. Cartilage cushions the ends of the bones and allows nearly frictionless joint motion, but enough damage can result in bone grinding directly on bone, which causes pain and restricted movement. This wear and tear can occur over many years, or it can be hastened by a joint injury or infection. Osteoarthritis also causes changes in the bones and deterioration of the connective tissues that attach muscle to bone and hold the joint together. If cartilage in a joint is severely damaged, the joint lining may become inflamed and swollen.

The Board finds that the evidence shows that the Veteran's right hip disability is secondary to his service-connected right knee and lumbar spine disabilities through the intermediate step of obesity. The Board affords high probative value to the portion of the May 2022 VA opinion where it was noted that the Veteran's right knee osteoarthritis may have caused a decreased range of motion to the ankle and hip. The February 2021 clinician indicated that the Veteran's right hip pain may have been as a result of his right knee disability. The Board also affords high probative value to the portion of the July 2021 VA examination wherein the VA examiner opined that the Veteran's pain radiated from his back to his right hip, and that obesity was the cause of his right hip pain.

The evidence includes the Veteran's statement that his hip has caused him pain since he injured his right knee during active service. The Board affords high probative value to the portion of the March 2017 VA examination where it is noted that the Veteran's right hip pain noted in service was due to a transient misuse of the knee, causing an antalgic gait and secondary pain of the right hip.

The most persuasive
as a result of his right knee disability. The Board also affords high probative value to the portion of the July 2021 VA examination wherein the VA examiner opined that the Veteran's pain radiated from his back to his right hip, and that obesity was the cause of his right hip pain.

The most persuasive evidence is in support of the Veteran's claim. As such, the Board finds that secondary service connection for a right hip disability is warranted.

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Sanders, Danielle A.

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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