SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served from November 1995 to July 1999, appeals the denial of service connection for obstructive sleep apnea (OSA). The veteran claims OSA is secondary to his service-connected cervical strain, unspecified depressive disorder, and obesity. The Board reviewed the evidence of record, including a November 2022 private medical assessment and a January 2023 VA examination. The private assessment linked the veteran's weight gain and obesity, stemming from his service-connected depressive disorder and cervical strain, to his OSA, opining it was at least as likely as not that OSA would not have occurred without this weight gain. The Board found this opinion adequate and highly probative. In contrast, the January 2023 VA examination opined that OSA was less likely than not proximately due to or the result of the service-connected disabilities, stating no relation between psychological or cervical conditions and OSA and that medical literature does not support a correlation. The Board found this VA opinion inadequate and less probative due to its conclusory nature and failure to address aggravation or obesity as an intermediate step. A subsequent May 2023 VA examination regarding toxic exposure risk activities (TERA) opined OSA was less likely than not caused by TERA, but also failed to adequately discuss the relationship between obesity and OSA or the positive private opinion. The Board found the greater weight of the evidence favored the veteran's claim for secondary service connection for OSA due to his cervical strain and depressive disorder with obesity as an intermediate step. Therefore, service connection for obstructive sleep apnea is granted.

Rationale

Private medical opinion found OSA at least as likely as not related to or aggravated by weight gain/obesity from service-connected conditions.; VA examination found OSA less likely than not related to service-connected conditions and was deemed inadequate.; Greater weight of adequate and probative evidence favored the veteran's claim for secondary service connection.

Full Decision Text

Citation Nr: A25028203
Decision Date: 03/26/25	Archive Date: 03/26/25

DOCKET NO. 240614-448891
DATE: March 26, 2025

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) is granted.

FINDING OF FACT

The Veteran's OSA is proximately due to or aggravated by his service-connected disabilities, to include obesity as an intermediate step.  

CONCLUSION OF LAW

The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served active duty from November 1995 until July 1999.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2023 decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Under the Appeals Modernization Act (AMA), the Board is bound by favorable findings by the AOJ unless rebutted by evidence of clear and unmistakable error.  38 C.F.R. § 3.104(c).  With respect to the Veteran's claim of entitlement, the RO made favorable findings that: (1) the Veteran has a current diagnosis of OSA; (2) the Veteran is service connected for cervical strain and unspecified depressive disorder; and (3) the Veteran was exposed to toxic substances during active duty.

Entitlement to service connection for OSA.

The Veteran contends that he is entitled to service connection for OSA secondary to his service-connected disabilities of unspecified depressive disorder and cervical strain with obesity as an intermediate step.  See June 2024 Appellant Brief.

Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury incurred in service. 38 C.F.R. § 3.303 (d).  To establish service connection, the veteran must show: (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 during service. Shedden v. Principi, 381 F.3d 1163, 1167.  

Service connection may also be granted, on a secondary basis, for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.  To establish service connection on a secondary basis, the veteran must show: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) either the disability that is proximately due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310.

As the Veteran only asserted a secondary cause of action, this decision will focus on whether the Veteran's OSA is proximately due to, or aggravated by, his service-connected disabilities.  Element one and two of secondary service connection has already been met.

In November 2022, the Veteran submitted a private medical assessment and opinion.  The Veteran was formally diagnosed with obstructive sleep apnea.  During the examination, the Veteran noted he gained 80 pounds due to his inactivity from his depressive disorder and cervical strain.  The examiner noted obesity is the number one factor for developing OSA and studies showed a relationship between mental health conditions, chronic pain, and chronic sleep impairment.  The examiner also noted the medication the
3.310.

As the Veteran only asserted a secondary cause of action, this decision will focus on whether the Veteran's OSA is proximately due to, or aggravated by, his service-connected disabilities.  Element one and two of secondary service connection has already been met.

In November 2022, the Veteran submitted a private medical assessment and opinion.  The Veteran was formally diagnosed with obstructive sleep apnea.  During the examination, the Veteran noted he gained 80 pounds due to his inactivity from his depressive disorder and cervical strain.  The examiner noted obesity is the number one factor for developing OSA and studies showed a relationship between mental health conditions, chronic pain, and chronic sleep impairment.  The examiner also noted the medication the Veteran is prescribed for his sleep impairment contributed to weight gain as well.  Finally, he noted NSAID medications, which the Veteran takes, causes fluid retention leading to postural fluid shifts at night increasing pressure and causing narrowing airway predisposing the Veteran to OSA.  

The examiner opined it is at least likely as not that the Veteran's weight gain and obesity is due to or related to his service-connected depressive disorder and cervical strain.  He also opined it is at least likely as not that the Veteran's OSA is related to or aggravated by the weight gain and obesity from his service-connected disabilities.  Finally, he opined it is at least likely as not that without the Veteran's weight gain and obesity, the Veteran's OSA would not have occurred.  

The Board finds this examination and opinion is adequate and highly probative.  The examiner's opinion is based on an accurate medical history, considers the Veteran's lay statement regarding symptoms, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. 

The Veteran was afforded a VA examination in January 2023.  The examiner opined the Veteran's OSA is less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner stated there is no relation between psychological conditions or cervical conditions and OSA.  He noted there is no clinical connection between the conditions and medical literature does not support correlation.  The Board finds this examination is inadequate and less probative because the examiner did not discuss the possibility of aggravation or obesity as an intermediate step.  The examiner also did not discuss the private medical opinion and only provided a conclusory rationale.

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In May 2023, a VA examiner provided an opinion regarding the Veteran's toxic exposure risk activities (TERA).  The examiner opined the Veteran's OSA was less likely than not caused by the Veteran's TERA 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 examiner stated OSA occurs due to passive collapse of the oro and nasopharynx during inspiration while asleep.  He noted it is caused by anatomical abnormalities such as obesity, enlarged tonsils, or posteriorly located tongue.  In addition, he noted age and obesity are risk for sleep apnea. Therefore, the examiner stated there was insufficient evidence for a nexus. Although this examination and opinion is adequate with regard to the Veteran's TERA, it does not account for or adequately discuss the relationship, if any, between the Veteran's obesity and his OSA. Neither does it adequately discuss the positive private opinion. As such, it is only slightly probative.

Based on the above, the greater weight of adequate and probative evidence persuasively weighs in favor of the Veteran's claim for service connection for OSA on a secondary basis to his cervical strain and depressive disorder with obesity as an intermediate step.  The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

 

 

JIMMY L. BARDIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bond, Tyana N.

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.