SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

PAUL SORISIO · 2025 · Case ID: A25003356

GRANTED

Summary

The Veteran, who served on active duty from December 1969 to October 1972, appeals the denial of service connection for obstructive sleep apnea (OSA) on a secondary basis. The Veteran claims his OSA is proximately due to his service-connected diabetes mellitus type 2 and bilateral peripheral neuropathy associated with diabetes. The Board reviewed the evidence, including a September 2020 private medical opinion, which found a bidirectional association between peripheral neuropathy, sleep disturbance, and OSA development, concluding the Veteran's OSA was at least as likely as not secondary to his service-connected conditions. The Board found this opinion to be competent, probative, and entitled to significant weight. A subsequent October 2020 VA examination was deemed inadequate because the examiner did not address aggravation and provided a negative nexus opinion based on an incorrect rationale regarding obesity. A November 2021 addendum VA opinion also concluded less likely than not, focusing on weight fluctuations and using an incorrect 51% causation standard, while failing to address the Veteran's credible lay statements about sleep disturbances from neuropathy. The Board found this opinion to carry little probative value. Weighing the evidence, the Board found the private opinion persuasive and the VA opinions inadequate or flawed. Therefore, service connection for OSA on a secondary basis to diabetes mellitus type 2 and bilateral peripheral neuropathy is granted.

Rationale

Competent private medical opinion found OSA at least as likely as not secondary to service-connected diabetes and neuropathy.; VA opinions were inadequate or flawed, focusing on obesity and using incorrect standards.; Lay statements regarding sleep disturbances from neuropathy were considered.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230605-352550

Full Decision Text

Citation Nr: A25003356
Decision Date: 01/14/25 Archive Date: 01/14/25

DOCKET NO. 230605-352550
DATE: January 14, 2025

ORDER

Service connection on a secondary basis for obstructive sleep apnea (OSA) is granted.

FINDING OF FACT

The Veteran's OSA is proximately due to his service-connected diabetes mellitus type 2 and bilateral peripheral neuropathy of his lower extremities associated with diabetes mellitus type 2.

CONCLUSION OF LAW

The criteria for service connection for OSA as secondary to the Veteran's service-connected diabetes mellitus type 2 and bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus type 2 are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.310(a).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1969 to October 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2022 by a Department of Veterans Affairs (VA) Regional Office (RO).

Procedurally, in September 2020 the Veteran filed a supplemental claim for service connection for sleep apnea. In an October 2020 rating decision, the RO denied this claim. In September 2021, the Veteran filed a VA 20-0996 and requested higher-level review (HLR) of the October 2020 decision. The RO found a duty-to-assist error and conducted additional development. In February 2022, the RO issued a rating decision that found new and relevant evidence had been received, but then denied service connection for sleep apnea on the merits. Subsequently, in a June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of February 3, 2022-the date of the rating decision on appeal. See 38 C.F.R. § 20.301. If the Veteran submitted evidence that was added to the record after February 3, 2022, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

As noted above, the February 2022 rating decision found that new and relevant evidence had been received to readjudicate the claim of OSA. This is a favorable finding by the agency of original jurisdiction (AOJ) and the Board will proceed to address the claim on the merits. See 38?U.S.C. § 5104A; 38?C.F.R. § 3.104(c).

Additionally, the Veteran requested a good cause exemption for the timely filing of a VA Form 10182 under 38 C.F.R. § 3.109(b) due to hardships caused by the COVID-19 national emergency. A June 5, 2023 memorandum from VA's Deputy Secretary, Office of Policy and Oversight, states that the end of the COVID guidance would end 60 days after the President signed a public law that terminated the national emergency on April 10, 2023; thus, the date to request an extension due to COVID-19 would be June 10, 2023. The Board finds that a timely request has been submitted and cause good has been shown in this matter due the COVID-19 pandemic. As such, the Board will accept the Veteran's VA Form 10182 and adjudicate this appeal.

Service Connection

Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995).

In addition, "for a veteran to receive secondary service connection on a causation basis under § 3.310(a), the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Frost v. Shulkin, 29 Vet. App. 131, 138 (2017).

Service
a claim of secondary service connection there must be evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995).

Service connection for OSA as secondary to service-connected diabetes mellitus type 2 and bilateral peripheral neuropathy of the lower extremities.

The Veteran asserts that he has difficulty sleeping due to the tingling sensation and numbness in his lower extremities brought on by his service-connected diabetes mellitus type 2. 9/23/2020 VA Form 21-4138. The Veteran further argues, through his attorney representative, that his difficulty sleeping has led to the development of his OSA. 9/10/2021 VA Form 20-0996, pp. 5-8. Because the competent and probative evidence of record weighs in favor of the Veteran's claim, service connection for OSA on a secondary basis is warranted.

As an initial note, the Veteran contends that his OSA was either caused or aggravated by his service-connected diabetes mellitus type 2 and/or bilateral peripheral neuropathy secondary to his diabetes mellitus type 2. The Veteran does not allege, and the evidence does not suggest, that his OSA disability was manifested during service, as a result of his service, or within one year following his separation from active service. As the Veteran is seeking service connection on a secondary basis, the Board will limit its analysis accordingly.

In its October 2020 rating decision, the RO noted as a favorable finding the Veteran's current diagnosis of OSA as noted by an October 2020 VA examination. 10/29/2020 Rating Decision, p. 3. Relatedly, the Veteran's medical treatment records indicate that the Veteran was originally diagnosed with severe sleep apnea in September 2015. CAPRI, received 8/29/2017, p. 492. As such, the competent evidence establishes a current disability.

The Veteran is service connected for diabetes mellitus type 2 and bilateral diabetic peripheral neuropathy of the lower extremities associated with diabetes mellitus type 2. 12/1/2008 Rating Decision; 2/14/2015 Rating Decision. The second element of secondary service connection is, therefore, also established by the record.

With respect to the third element, that of causation or aggravation of the Veteran's OSA by his service-connected disabilities, while the Veteran is competent to report the tingling sensations and numbness in his lower extremities that interfere with his sleep, he is not competent to provide a medical nexus opinion linking his OSA to his service-connected disabilities, as that would be an opinion medical in nature requiring medical expertise. 9/23/2020 VA Form 21-4138; See Layno v. Brown, 6 Vet. App. 465 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, there is competent medical evidence of record relevant to this matter and the Board turns to it next.

As an initial note, the Veteran underwent a 2017 VA examination in relation to a prior claim seeking service connection for sleep apnea secondary to the Veteran's service-connected coronary artery disease. That examiner was not asked to consider secondary service connection in relation to diabetes mellitus type 2 or diabetic peripheral neuropathy and, therefore, provided no medical opinion as to those theories of entitlement. Thus, the September 2017 examination has no probative value as to the current secondary service connection matter.

In September 2020, the Veteran submitted results from a sleep apnea assessment and a private medical opinion. See General Records Request (Medical), received 9/23/2020. The assessment confirmed the Veteran's OSA diagnosis from 2015 and noted the Veteran's symptoms of daytime fatigue and poor concentration. Id. at 2. The opinion acknowledged review of the Veteran's entire medical treatment history (service and civilian) and credible lay statements of record. Id. at 2-3. The opinion examined a variety of medical literature supporting the bidirectional association between peripheral neuropathy to sleep disturbance and the association between sleep disturbance and the development of OSA. Id. In addition, the opinion cited medical literature supporting that diabetes may be a significant independent contributor to
, the Veteran submitted results from a sleep apnea assessment and a private medical opinion. See General Records Request (Medical), received 9/23/2020. The assessment confirmed the Veteran's OSA diagnosis from 2015 and noted the Veteran's symptoms of daytime fatigue and poor concentration. Id. at 2. The opinion acknowledged review of the Veteran's entire medical treatment history (service and civilian) and credible lay statements of record. Id. at 2-3. The opinion examined a variety of medical literature supporting the bidirectional association between peripheral neuropathy to sleep disturbance and the association between sleep disturbance and the development of OSA. Id. In addition, the opinion cited medical literature supporting that diabetes may be a significant independent contributor to the risk of OSA. Id. at 2. The opinion concluded that, based on the Veteran's medical history and treatment records as applied to the medical literature cited and addressed in the opinion, the Veteran's OSA was at least as likely as not secondary to, related to, and/or aggravated by his service-connected diabetes mellitus type 2 and bilateral peripheral neuropathy of the lower extremities. Id. at 3.

The September 2020 private medical opinion contains a thorough analysis and review of the relevant medical literature in support of its conclusion. There is no evidence that the examiner was either not competent or credible. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In October 2020, the Veteran underwent a VA examination in which the examiner confirmed the Veteran's diagnosis of OSA. 10/26/2020 DBQ, p. 2. The examiner noted the Veteran's persistent daytime hypersomnolence and use of a continuous positive airway pressure (CPAP) machine. Id. The examiner stated in the report that the date of diagnosis of sleep apnea was in 2005. This appears to be based on the Veteran's report of when it began plus the report that he has experienced years of snoring, restless sleep, and fatigue. Id. The examiner concluded that because diabetes mellitus type 2 and bilateral peripheral neuropathy of the lower extremities do not obstruct the upper airway, the Veteran's OSA was less likely than not due to or the Veteran's service-connected disabilities. 10/26/2020 DBQ Med. Opinion, p. 2. The examiner did not address the question of aggravation in the report.

The Board finds the October 2020 examination to be inadequate. It is well established that both causation and aggravation must be discussed for an opinion on secondary service connection to be adequate. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); see also Allen v. Brown, 7 Vet. App. 439 (1995). Here, the examiner did not provide an opinion regarding whether the Veteran's OSA was aggravated by his service-connected disabilities. As this part was missing, the Board places that this opinion does not carry weight regarding a secondary service connection nexus.

In the process of conducting its higher-level review, the RO found that a duty to assist error had occurred in relation to the October 2020 opinion and that a new medical opinion addressing the question of aggravation was required. As part of that addendum opinion, the RO directed the examiner to review the private medical opinion submitted by the Veteran in September 2020.

In November 2021, an addendum opinion addressing secondary service connection was obtained from a VA examiner. See 11/19/2021 DBQ Med. Opinion. The examiner reviewed the Veteran's complete medical file and acknowledged review of the September 2020 private medical opinion. Id. at 2. The examiner stated that obesity is defined as excess fat tissue and that there are many potential contributing factors to weight gain. Id. at 3. The examiner concluded that because factors affecting weight gain wax and wane and can contribute at the same time, the examiner could not "say that 51% of the cause of the claimant's weight gain is due to his service-connected disabilities." Id. The examiner identified that the medical records evidenced that the Veteran had lost weight during the period from 2016 - 2018 despite his diabetes and diabetic peripheral neuropathy. Id. The examiner concluded, therefore, that the Veteran's OSA was less likely than not proximately due to or aggravated by his service-connected diabetes and diabetic peripheral neuropathy.

The November 2021 examiner focused solely on the issue of obesity and did not include any discussion of the Veteran's credible lay statements indicating he suffered sleep disturbances from the tingling sensations and numbness associated with his diabetes mellitus type 2 and diabetic peripheral neuropathy. The examiner identified four medical notes between 2016 and 2018 reflecting the Veteran's weight fluctuations between 188 lbs. to 201 lbs. and concluded that based on these fluctuations the Veteran's obesity was not diabetes related. However, the examiner did not opine on measurements taken between 2016 and 2019 reflecting the Veteran's BMI to be 30, 33, and 31 at various points. CAPRI, received 8/29/2017, pp. 61, 131; CAPRI, received 2/2/2022, p. 640. These BMI measurements place the Veteran in the category of obese. See Center for Disease Control and Prevention (CDC), Adult BMI Categories, https://www.cdc.gov/bmi/adult-calculator/bmi-categories.html. In addition, medical treatment notes list the Veteran as obese in 2016 and 2017. CAPRI, received 8/29/2017, pp. 131, 212. These BMI measurements and treatment notes appear to contradict the rationale underlying the examiner's conclusion and their absence from the examiner's discussion diminishes the value of the opinion as a whole.

Furthermore, while the examiner acknowledged review of the September 2020 private medical opinion, the examiner did not offer any rebuttal to or refutation of that examiner's competing rationale and conclusion, specifically, the general relationship between neuropathy, sleep disturbance, and development of OSA. Lastly, the examiner's statement regarding the need to confirm the cause of obesity to a 51% degree of certainty applies an incorrect standard, as service connection is warranted when the evidence is in approximate balance, which may be less than 51%. See 38 U.S.C. § 5107(b) (stating that when there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant). In view of these issues, the Board finds that the unfavorable November 2021 opinion carries little-to-no probative weight.

After careful consideration of the medical examinations, medical treatment records, and lay statements and argument of record, the Board finds that the Veteran's OSA is proximately due to his service-connected disabilities. As detailed above, the Veteran has submitted a favorable private medical opinion that shows adequate consideration of the relevant evidence and is supported by a medical rationale, to include discussion of relevant medical literature associating the Veteran's service-connected disabilities with the development of his OSA. The opinion explicitly links sleep disturbances brought on by the Veteran's bilateral peripheral neuropathy with development of OSA and provides a clear conclusion that the Veteran's OSA is due to his diabetes and/or diabetic peripheral neuropathy.

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The Board finds the competent and probative evidence of record persuasively weighs in favor of a grant of secondary service connection. Accordingly, the Veteran's claim for service connection for OSA secondary to his service-connected disabilities is granted. 38 C.F.R. § 3.310(a).

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Donahue, Thomas P.

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.

. § 20.1303.

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