SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran served from February 1988 to December 1992, January 2000 to January 2003, October 2006 to September 2009, and May 2010 to January 2012. The Veteran appealed the denial of service connection for sleep apnea, claiming it was secondary to his service-connected generalized anxiety disorder with panic attacks and musculoskeletal conditions. The Veteran submitted a lay statement detailing symptoms of sleep apnea and a private medical opinion from Dr. Zeyad Marcos, who diagnosed sleep apnea based on a STOP-Bang Questionnaire and opined it was at least as likely as not caused by the Veteran's service-connected conditions. However, the Board found Dr. Marcos's opinion to be of little probative value, noting that the research cited contradicted his assertion that the STOP-Bang Questionnaire is a diagnostic tool, and that it is validated as a screening tool requiring a sleep study for diagnosis. The Board also referenced VA Adjudication Manual M21-1, which states a sleep apnea diagnosis without a sleep study is insufficient for award. The Veteran failed to attend a scheduled VA sleep study in February 2024, providing a work conflict as an explanation in a later statement without prior notification. As the sleep study was necessary to confirm the diagnosis and the Veteran failed to attend without good cause prior to the AOJ decision, the claim was decided on the evidence of record. The Board found the evidence persuasively against a diagnosis of sleep apnea, noting that symptoms of sleep impairment were already compensated within the rating for generalized anxiety disorder. Service connection for sleep apnea was denied.

Rationale

Insufficient evidence of current diagnosis of sleep apnea; Veteran failed to attend scheduled VA sleep study without good cause; Symptoms of sleep impairment compensated within generalized anxiety disorder rating

Full Decision Text

Citation Nr: A25100748
Decision Date: 11/19/25	Archive Date: 11/19/25

DOCKET NO. 250114-511830
DATE: November 19, 2025

ORDER

Entitlement to service connection for sleep apnea, claimed as secondary to service-connected disabilities, is denied.

FINDING OF FACT

The evidence of record persuasively weighs against finding that the Veteran has had sleep apnea at any time during or approximate to the pendency of the claim.  Symptoms of chronic sleep impairment, including insomnia, are contemplated within the rating assigned for his service-connected generalized anxiety disorder with panic attacks.

CONCLUSION OF LAW

The criteria for service connection for sleep apnea are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.655.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1988 to December 1992, January 2000 to January 2003, October 2006 to September 2009, and May 2010 to January 2012.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which denied the Veteran's claim of entitlement to service connection for sleep apnea.

On January 14, 2025, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which he disagreed with the denial of service connection for sleep apnea and elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the March 2024 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he 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.

1. Entitlement to service connection for sleep apnea, claimed as due to service-connected disabilities.

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current
.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or was aggravated beyond its normal progression by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, and when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.  38 C.F.R. § 3.655 (a)-(b).

In this matter, the Veteran asserts entitlement to service connection for sleep apnea, which he contends was incurred as a result of his service-connected disabilities.  See the Veteran's statement dated July 2023.  For the reasons set forth below, the Board finds that entitlement to service connection for sleep apnea is not warranted.

In a July 2023 statement, the Veteran indicated stated that he takes medications for his service-connected generalized anxiety disorder with panic attacks to include "Ativan (lorazopam) and Effexor (venlafaxine) - Because of my mental health condition, I have dry mouth upon awakening, insomnia, nighttime sweating, and vivid nightmares."  He continued, "I am also service connected for my musculoskeletal condition of cervical spine spondylolisthesis C5 -C6 to include degenerative disc disease, carpal tunnel syndrome, right wrist, and carpal tunnel syndrome, left wrist, which keeps me from exercising."  He explained, "[m]y musculoskeletal conditions prevent me from being able to sleep on my side.  Additionally, my pain from my musculoskeletal conditions make it difficult to fall or stay asleep."  He further stated, "I have experienced the following symptoms related to Sleep Apnea: pauses in breathing while sleeping, snoring, trouble sleeping with frequent awakenings, headaches upon awakening, and daytime fatigue."

Insofar as the Veteran has reported frequent awakenings and daytime fatigue, the Board notes that chronic sleep impairment has been considered as part of the constellation of symptoms compensated for within the rating for his service-connected generalized anxiety disorder with panic attacks.  See the VA mental disorders examination dated March 2023.  As the Veteran may not be compensated twice for the same symptoms, the Board here is only focused on whether the Veteran has a current disability of sleep apnea which began during service, is otherwise related to service, or is due to, or aggravated by, service-connected disabilities.

The Veteran's service treatment records (STRs) do not contain any diagnosis of OSA.  VA treatment records similarly contain no diagnosis of sleep apnea.  VA treatment and service treatment records also do not include any recommendation that the Veteran use a CPAP machine.  Critically, there are no sleep studies of record which diagnose obstructive sleep apnea (OSA) or any other type of sleep apnea.

In support of his claim, the Veteran submitted a July 2023 "Medical Nexus Letter" from Zeyad Marcos, M.D., who diagnosed OSA based on "lay statements inclusive of OSA symptomatology" and the results of an eight question "STOP-Bang Questionnaire."  Dr. Marcos then opined that it is at least as likely as not ("a 50%/50% probability") that the Veteran's "weight gain is due to their service-related conditions to include generalized anxiety disorder with panic attacks, cervical spine spondylolisthesis C5-C6 to include degenerative disc disease, carpal tunnel syndrome, right wrist, and carpal tunnel syndrome left wrist."  Dr. Marcos continued, "[t]his Vetern's overweight condition led to, caused, and/or aggravated the current obstructive sleep apnea."

For multiple reasons, the Board finds that this opinion is of little probative
 inclusive of OSA symptomatology" and the results of an eight question "STOP-Bang Questionnaire."  Dr. Marcos then opined that it is at least as likely as not ("a 50%/50% probability") that the Veteran's "weight gain is due to their service-related conditions to include generalized anxiety disorder with panic attacks, cervical spine spondylolisthesis C5-C6 to include degenerative disc disease, carpal tunnel syndrome, right wrist, and carpal tunnel syndrome left wrist."  Dr. Marcos continued, "[t]his Vetern's overweight condition led to, caused, and/or aggravated the current obstructive sleep apnea."

For multiple reasons, the Board finds that this opinion is of little probative value.  Dr. Marcos described the "STOP-Bang Questionnaire" as "having a high sensitivity and specificity in clinically diagnosing OSA."  The medical research included with the opinion, however, contradicts this statement.  In reviewing the two research abstracts included with the opinion, the questionnaire was neither described as a tool to clinically diagnose OSA nor used to clinically diagnose OSA.  The first article, entitled "The STOP-Bang Test Is Useful for Predicting the Severity of Obstructive Sleep Apnea," indicates that the STOP-Bang Questionnaire was used to detect patients at high risk of OSA and concluded by stating that "polysomnography should be performed actively for patients with high STOP-Bang scores."  In the second article, entitled "Validation of the STOP-Bang Questionnaire as a Screening Tool for Obstructive Sleep Apnea among Different Populations: A Systemic Review and Meta-Analysis," the STOP-Bang Questionnaire was described as a "validated screening tool for OSA" and included only data where "the accuracy of the STOP-Bang Questionnaire was validated by polysomnography - the gold standard for diagnosing OSA."   Based on the above, the Board finds that this private medical opinion is insufficient for adjudication, and specifically not adequate to substantiate a current diagnosis of OSA.

Further, the Veterans Benefits Administration (VBA) has instructed its adjudicators that a diagnosis of sleep apnea without a sleep study will trigger the duty to assist in obtaining a sleep study, but is insufficient to award service connection for sleep apnea.  VA Adjudication Manual M21-1 V.iii.4.A.2.a.  Although administrative materials such as circulars and manuals are not binding on the Board, the Board is obligated to independently review relevant manual provisions.  Overton v. Wilkie, 30 Vet. App. 257, 264 (2018).  The VBA M21-1 instruction is not binding on the Board; however, the Board finds the instruction persuasive.  While Dr. Marcos opined that the Veteran had a diagnosis of OSA based on the STOP-Bang Questionnaire, the evidence shows that this screening necessitated a sleep study following a high score and was not, in fact, demonstrative of a clinical diagnosis of sleep apnea.  See articles included in July 2023 "medical nexus letter" and VA Adjudication Manual M21-1 V.iii.4.A.2.a.

Accordingly, the Veteran was afforded a VA examination in August 2023 at which time the examiner indicated that there was a "[l]ack of evidence of diagnosed sleep apnea.  No documented sleep study has been provided to show a diagnosis of sleep apnea."  The Veteran was thereafter scheduled for another VA examination in February 2024 to conduct a sleep study to confirm whether he has a current diagnosis of sleep apnea to include OSA.  Critically, however, the Veteran failed to appear for the scheduled examination.

If entitlement to a VA benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record.  See 38 C.F.R. § 3.655(b).  An appeal of an initial rating assigned continues to be an original claim as a matter of law.  See Turk v. Peake, 21 Vet. App. 565, 568 (2008); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Examples of good cause include, but are not limited to, illness or hospitalization of the claimant, death of an immediate family member, etc.  38 C.F.R. § 3.655(b).

The U.S. Court of Appeals for Veterans Claims (Court) has held that when a claimant misses a scheduled VA examination, the Board must consider:  (1) whether the examination is necessary to establish the entitlement to the benefit sought, and
 original claim as a matter of law.  See Turk v. Peake, 21 Vet. App. 565, 568 (2008); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Examples of good cause include, but are not limited to, illness or hospitalization of the claimant, death of an immediate family member, etc.  38 C.F.R. § 3.655(b).

The U.S. Court of Appeals for Veterans Claims (Court) has held that when a claimant misses a scheduled VA examination, the Board must consider:  (1) whether the examination is necessary to establish the entitlement to the benefit sought, and (2) whether the claimant had good cause to miss the scheduled examination.  Turk v. Peake, 21 Vet. App. 565, 568 (2008).

To this end, the Board recognizes that in a January 2025 statement, the Veteran stated, "I was unable to make my sleep study clinic appointment due to work conflict.  Request a new sleep study appointment to evaluate my condition."  The Veteran does not dispute that he was properly notified of the February 2024 VA sleep study and has provided no explanation for his failure to notify VA of his work conflict prior to the scheduled VA sleep study.  Even assuming arguendo, the Veteran's explanation constituted good cause, the Board is unable to remand for another examination based on the Veteran's statement because such evidence was not before the AOJ at the time of the decision on appeal; thus, no pre-decisional duty to assist error was present.  38 C.F.R. § 20.802(a).

In this case, the examination with sleep study at issue was necessary to confirm whether the Veteran had a diagnosis of sleep apnea.  And, as set forth above, the Veteran did not provide good cause for failing to appear for the VA sleep study prior to the issuance of the March 2024 rating decision.  Under these circumstances, the claim must be decided based on the evidence of record.

After a review of the available evidence of record, the Board finds it is persuasively against the Veteran having been diagnosed with sleep apnea at any time prior to or since filing his claim for benefits.  As such, the Board concludes that the Veteran does not have a current diagnosis of OSA, or any other type of sleep apnea, and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As detailed above, while the Veteran has, at times, reported symptoms related to chronic sleep impairment, such as fatigue and difficulty falling and staying asleep, these symptoms are already contemplated with his rating for his service-connected generalized anxiety disorder with panic attacks.  Thus, the question in this case is limited only to whether he has OSA or another form of sleep apnea which was incurred in service or is causally related to an in-service disease or injury or caused or aggravated by his service-connected disabilities.  Because the Veteran failed to appear for his VA sleep study, critical diagnostic testing has not been performed with respect to this claim.

Considering all the evidence, the Board finds it is persuasively against the Veteran having a current disability, or having had a disability, of OSA or any other type of sleep apnea while this claim has been pending.  As such, the Board concludes that the criteria for service connection are not met.  38 C.F.R. § 3.303.  As the evidence is persuasively against the claim, the benefit of the doubt rule is inapplicable.  See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

 

 

T. Berry

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. K. Buckley, 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.