SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served from January 1987 to August 1990 and again from January 1991 to March 1991, appeals the denial of service connection for obstructive sleep apnea, right foot pain, and left foot pain. The veteran claims these conditions are secondary to his service-connected bilateral knee strain, with obesity acting as an intermediate step. The Board reviewed a May 2024 private medical opinion, which concluded that the veteran's service-connected bilateral knee strain likely contributed to his weight gain and subsequent development of obstructive sleep apnea and bilateral foot pain. The private clinician cited medical literature supporting the link between reduced physical activity due to pain, weight gain, and these conditions. The Board found the private opinion adequate and persuasive, noting the veteran's documented weight gain and the established service connection for bilateral knee strain. The Board also acknowledged the absence of a VA examination for these claims. Applying the benefit of the doubt, the Board found service connection warranted for obstructive sleep apnea, right foot pain, and left foot pain on a secondary basis due to the service-connected bilateral knee strain with obesity as an intermediate step. The decision was based on the private opinion and the favorable prior finding of service connection for the knee condition.

Rationale

Private medical opinion found likely connection via weight gain; Obesity as intermediate step between knee strain and sleep apnea; Benefit of doubt resolved in veteran's favor

Full Decision Text

Citation Nr: A25069927
Decision Date: 08/19/25	Archive Date: 08/19/25

DOCKET NO. 241022-484996
DATE: August 19, 2025

ORDER

Service connection for obstructive sleep apnea, as secondary to service-connected bilateral knee strain, is granted.

Service connection for a right foot disability manifested by pain, as secondary to service-connected bilateral knee strain, is granted.

Service connection for a left foot disability manifested by pain, as secondary to service-connected bilateral knee strain, is granted.

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FINDINGS OF FACT

1. The Veteran's obstructive sleep apnea was caused by his service-connected bilateral knee strain, with obesity serving as an intermediate step. 

2. The Veteran's right foot pain was caused by his service-connected bilateral knee strain, with obesity serving as an intermediate step. 

3. The Veteran's left foot pain was caused by his service-connected bilateral knee strain, with obesity serving as an intermediate step. 

CONCLUSIONS OF LAW

1. The criteria for service connection for obstructive sleep apnea, on a secondary basis, are met.  §§ 1110, 1131, 5107; 38?C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for a right foot disability manifested by pain, on a secondary basis, are met.  §§ 1110, 1131, 5107; 38?C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for a left foot disability manifested by pain, on a secondary basis, are met.  §§ 1110, 1131, 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 January 1987 to August 1990 and from January 1991 to March 1991. 

This matter is on appeal from an October 2024 rating decision

In an October 2024 notice of disagreement (NOD), the Veteran elected the direct review docket.  Therefore, the Board may only consider the evidence of record at the time of the October 2024 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. 

Whether new and relevant evidence has been received to warrant readjudicating the previously denied claims of service connection for obstructive sleep apnea, right foot pain, and left foot pain.

New and relevant evidence is required to have a claim readjudicated in the AMA system.  See 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156(a), (d).  In determining whether new and relevant evidence is presented or secured, VA will consider any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed.

New evidence is evidence not previously part of the actual record before agency adjudicators.  Relevant evidence is information that tends to prove or disprove a matter at issue in a claim.  Relevant evidence also includes evidence that raises a theory of entitlement that was not previously addressed.  See 38 C.F.R. § 3.2501(a)(1).

Although the Veteran submitted a new private medical opinion in support of his claims prior to the final rating decision, the AOJ determined in the October 2024 rating decision that new and relevant evidence had not been received because the new opinion does not prove or disprove a matter at issue with the claim.  The Board finds that the new private medical opinion is new because it was submitted after the previous rating decision, and it is relevant because it is a medical opinion that supports the Veteran's claims.  As such, the Board finds that the Veteran's private opinion submitted after the previous rating decision is both new and relevant to his claims.  Thus, readjudication of the claims is warranted and is further addressed below.   See 38 C.F.R. § 3.156(d).

Service Connection

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, 1131; 38 C.F.R. § 3.303.  A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability
 relevant because it is a medical opinion that supports the Veteran's claims.  As such, the Board finds that the Veteran's private opinion submitted after the previous rating decision is both new and relevant to his claims.  Thus, readjudication of the claims is warranted and is further addressed below.   See 38 C.F.R. § 3.156(d).

Service Connection

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, 1131; 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."  See 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 also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury.  See 38?C.F.R. §?3.310. 

Obesity can serve as an "intermediate step" between a current disability and a service-connected disability for purposes of secondary service connection if it is found that (1) a service-connected disability caused or aggravated the veteran to become obese; (2) this obesity was a substantial factor in causing the current disability; and (3) the current disability would not have occurred but for the obesity caused or aggravated by a service-connected disability.  See Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020).  If these three criteria are answered in the affirmative, then the claimed current disability may be service connected on a secondary basis.  Id.  Stated another way, obesity can constitute an "intermediate step" in showing secondary service connection, i.e., that service connection is warranted when a service-connected disability causes or aggravates obesity, which in turn causes the claimed disability.  Id.

Finally, it has been held that to reasonably raise the theory of secondary service connection via obesity as an "intermediate step," there must be some evidence in the record that draws an association or suggests a relationship between a veteran's obesity, or weight gain resulting in obesity, and a service-connected disability.  Conversely, incidental references in the record to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement.  See Garner v. Tran, 33 Vet. App. 241, 248 (2021).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt).

Service connection for obstructive sleep apnea.

The Veteran contends that his obstructive sleep apnea is caused by his service-connected bilateral knee strain, with obesity as an intermediate step.  Specifically, the Veteran argues that the pain from his service-connected bilateral knee strain has limited his ability to perform any physical activity causing weight gain, and thus, affecting his sleep.  See May 2024 supplemental claim and statement in support of claim.

Initially, in the October 2024 rating decision, the AOJ favorably found that the Veteran has obstructive sleep apnea and that he is service-connected for a primary disability of bilateral knee strain.  A February 2023 VA treatment record shows an obstructive sleep apnea diagnosis.  The Board is bound by these?prior favorable findings, which were not clearly and unmistakably erroneous.  38 C.F.R. § 3.104(c).

The Veteran submitted a May 2024 private opinion.  The private clinician concluded that it is at least as likely as not that the Veteran's service-connected bilateral knee strain ultimately contributed to the Veteran's weight gain and the development of obstructive sleep apnea.  The private clinician noted that sleep apnea occurs when the throat muscles relax and block the airway during sleep which causes loud snoring, difficulty breathing, and additional symptoms.  The clinician opined that the most common cause and
2023 VA treatment record shows an obstructive sleep apnea diagnosis.  The Board is bound by these?prior favorable findings, which were not clearly and unmistakably erroneous.  38 C.F.R. § 3.104(c).

The Veteran submitted a May 2024 private opinion.  The private clinician concluded that it is at least as likely as not that the Veteran's service-connected bilateral knee strain ultimately contributed to the Veteran's weight gain and the development of obstructive sleep apnea.  The private clinician noted that sleep apnea occurs when the throat muscles relax and block the airway during sleep which causes loud snoring, difficulty breathing, and additional symptoms.  The clinician opined that the most common cause and risk factor of obstructive sleep apnea is excess weight or obesity, noting that people with excess weight often have pockets of fat around the upper airway that constricts breathing.  The clinician relied on medical literature showing that weight gain can cause obstructive sleep apnea.  

The clinician further noted that the Veteran's post-treatment records indicate a continued significant increase in weight following his in-service knee injuries and highlighted his current weight of 286.8 pounds with a BMI of 34.9.  The clinician opined that the Veteran's pain from his service-connected bilateral knee conditions resulted in reduced physical activity, and unhealthy eating habits, ultimately leading to significant weight gain, and that weight gain served as an intermediate step in the development of obstructive sleep apnea.  Therefore, the private clinician concluded it is their professional opinion that the Veteran's obstructive sleep apnea is at least as likely as not proximately due to or the result of the Veteran's service-connected bilateral knee strain with obesity as an intermediate step.  The clinician based their opinion on review of the Veteran's service treatment records from enlistment through separation, post military records, statements from the Veteran, C&P evaluations, and medical research.

The Board finds that the opinion is adequate because it was provided by a medical professional, it is based on an accurate medical history, and it provides a clear explanation for the conclusions and supporting data.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board acknowledges that the Veteran was not afforded a VA examination or opinion in connection with the claim.  

Accordingly, the Board finds that the Veteran's obstructive sleep apnea is due to his service-connected bilateral knee strain, with obesity as an intermediate step.  This is particularly so when reasonable doubt is resolved in the Veteran's favor.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Therefore, service connection for obstructive sleep apnea on a secondary basis is warranted.

Service connection for a right foot condition.

Service connection for a left foot condition.

The Veteran contends that his bilateral foot pain is caused by his service-connected bilateral knee strain, with obesity as an intermediate step.  Specifically, the Veteran argues that the pain from his service-connected bilateral knee strain has impacted his ability to stand, sit, walk, bend, lift, and exercise.  The Veteran additionally stated that his pain limits his ability to perform any physical activity leading to excessive weight gain, resulting in bilateral foot pain.  See May 2024 supplemental claim and statement in support of claim.

As stated above, in the October 2024 rating decision, the AOJ favorably found that is service-connected for a primary disability of bilateral knee strain.  The Board is bound by this?prior favorable finding, which was not clearly and unmistakably erroneous.  38 C.F.R. § 3.104(c).

The Veteran submitted a May 2024 private opinion.  The private clinician concluded that it is at least as likely as not that the Veteran's service-connected bilateral knee strain ultimately contributed to the Veteran's weight gain and the development of bilateral foot pain.  The clinician relied on a study finding that musculoskeletal conditions, manifesting as pain in soft tissues and joints are the leading cause of disability worldwide, second only to mental and behavioral problems in contributing to total years lived with disability, and that musculoskeletal pain can lead to avoidance of physical activity and weight gain.  The study further noted that excessive weight gain may result in the development of obesity and that there is a strong bidirectional relationship between obesity and musculoskeletal pain.  The examiner additionally opined that weight gain can occur in individuals suffering from chronic pain because those individuals are generally less active because of the pain, they eat more in response to the stress of coping with daily pain, and weight gain is a common side effect of certain medications.  The clinician noted that excess weight can put more stress on joints, cause spinal compression, and make exercise difficult.  In addition to the physical burden of
 mental and behavioral problems in contributing to total years lived with disability, and that musculoskeletal pain can lead to avoidance of physical activity and weight gain.  The study further noted that excessive weight gain may result in the development of obesity and that there is a strong bidirectional relationship between obesity and musculoskeletal pain.  The examiner additionally opined that weight gain can occur in individuals suffering from chronic pain because those individuals are generally less active because of the pain, they eat more in response to the stress of coping with daily pain, and weight gain is a common side effect of certain medications.  The clinician noted that excess weight can put more stress on joints, cause spinal compression, and make exercise difficult.  In addition to the physical burden of excess weight, excess fatty tissue may lead to inflammation, which is associated with increased pain and other symptoms of chronic diseases and disorders.  

The clinician further opined that the Veteran's service-connected bilateral knee conditions caused the Veteran to develop poor walking mechanics resulting in overcompensation.  Therefore, the clinician concluded that the pain from the Veteran's service-connected bilateral knee conditions caused reduced physical activity and unhealthy eating habits, ultimately resulting in significant weight gain, which, coupled with overcompensation, led to the development of bilateral foot pain.  The clinician based their opinion on review of the Veteran's service treatment records from enlistment through separation, post military records, statements from the Veteran, C&P evaluations, and medical research.  

The Board finds that the opinion is adequate because it was provided by a medical professional, it is based on an accurate medical history, and it provides a clear explanation for the conclusions and supporting data.  See Nieves-Rodriguez, 22 Vet. App. at 304.

The Veteran was not afforded a VA opinion in connection with the claims. 

Accordingly, the Board finds that the Veteran's bilateral foot pain is due to his service-connected bilateral knee strain, with obesity as an intermediate step.  This is particularly so when reasonable doubt is resolved in the Veteran's favor.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Therefore, service connection for a right and left foot disability manifested by pain on a secondary basis is warranted.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fyffe, Michael C.

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.