SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

M. C. GRAHAM · 2025 · Case ID: A25103929

DENIED

Summary

The Veteran, a veteran who served from July 1987 to July 1991, appeals the denial of service connection for obstructive sleep apnea. The Veteran claimed the sleep apnea was secondary to his service-connected IVDS (lumbar spine degenerative disc disease) and chronic pain syndrome, citing private medical opinions from D.A., M.D., J.D., and S.B., M.D. The Board found these opinions lacked probative value due to a violation of professional conduct rules, as D.A. was the Veteran's representative and also provided the medical opinion, blurring the lines between legal argument and medical evidence. The Board also found the opinions nearly identical and professionally associated, raising credibility concerns. VA examinations in November 2022 and July 2024 also found the sleep apnea less likely than not related to service or secondary to IVDS, citing a lack of direct causation and bidirectional relationship between pain and sleep. While the July 2024 examiner noted a potential link between sleep disruption and pain, the Board found the Veteran's reports of waking due to back pain lacked credibility and were inconsistent with treatment records showing he slept well. The Board also considered the claim under PACT Act provisions for toxic exposure risk activity (TERA) and Gulf War presumptive illnesses, but VA examiners concluded sleep apnea was not medically proven to be caused by burn pits or other toxic exposures, and its pathophysiology is understood, precluding presumptive service connection. The Board found the evidence persuasively against the claim, denying service connection for sleep apnea.

Rationale

Private medical opinions discounted due to Rule 3.7 violation; VA examiners found less likely than not related to service; Veteran's reports of pain-related sleep disruption lacked credibility; No evidence of aggravation from service-connected IVDS; Sleep apnea pathophysiology understood, precluding MUCMI presumption; No evidence of causation from burn pits or other TERAs

Special Benefit

NO SPECIAL BENEFIT

Docket No.

241008-481686

Full Decision Text

Citation Nr: A25103929
Decision Date: 12/03/25 Archive Date: 12/03/25

DOCKET NO. 241008-481686
DATE: December 3, 2025

ORDER

Entitlement to service connection for obstructive sleep apnea is denied.

FINDING OF FACT

The evidence persuasively reflects the Veteran's obstructive sleep apnea is not related to service or service-connected IVDS, previously evaluated as lumbar spine degenerative disc disease.

CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1117, 1131, 1168, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1987 to July 1991. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

In January 2024, the Veteran, through his attorney representative, submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2023 rating decision. In a May 2024 rating decision, the Agency of Original Jurisdiction (AOJ) identified a pre-decisional duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. In July 2024, the AOJ issued a rating decision, which denied the claim based on the evidence of record at the time of that decision. Then, in August 2024, the AOJ again issued another decision, the AOJ decision on appeal, which denied the claim based on the evidence of record at the time of that decision.

In an October 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran, through his attorney representative, elected the Hearing option. In a later January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran, through his attorney representative, requested a docket switch, and elected the Evidence Submission option. April 9, 2025 Board correspondence notified the Veteran and his attorney representative that the appeal has been placed on the Evidence Submission docket, and that they had had 90 days from the date of this letter to submit new evidence.

The Board may only consider the evidence of record at the time of the August 2024 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his attorney representative within 90 days following VA's April 9, 2025 notice that the appeal has been switched to the Evidence Submission docket. 38 C.F.R. § 20.303(b)(2).

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.

In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran, through his attorney representative, expressed disagreement with both the July 2024 and August 2024 rating decisions. Here, the Board finds the August 2024 rating decision is the AOJ decision on appeal, as it is more favorable to the Veteran, as it potentially allows for Board consideration of additional evidence. Terry v. McDonough, 37 Vet. App. 1, 25-26 (2023).

In May 2023, the Veteran's attorney representative requested a copy of the Veteran's claims file, which was provided to him in November 2023.

As a final preliminary matter, the Board acknowledges that VA received from the Veteran, though his attorney representative, September 2022 and May 2023 private medical opinions, which contained hyperlinks to content that was not otherwise part of the record on appeal; however, that content was not accessed nor considered as part of the record before the Board. See Bowey v. West, 11 Vet. App. 106, 108-09 (1998) (holding that the mere reference to non VA documents is insufficient to incorporate them into the record).

1. Entitlement to service
2023, the Veteran's attorney representative requested a copy of the Veteran's claims file, which was provided to him in November 2023.

1. Entitlement to service connection for sleep apnea

The Veteran seeks service connection for sleep apnea. In his October 2022 application for benefits, the Veteran asserted his sleep apnea was secondary to IVDS, previously evaluated as lumbar spine degenerative disc disease. He also stated his "back pain is severe enough to cause me to wake after going to bed" and that he rarely had "to use the bathroom upon awakening, but having to sit in a reclining chair near my bed, hoping to resume my sleep, without much success." Also, in an October 2022 statement, the Veteran reported for years he have been waking in the middle of the night for no reason, that he rarely had to use the bathroom but woke anyway, and "with back pain raging, I'd just sit in a recliner" and that "[d]uring the day I noticed that I was always tired and sleepy and struggled to stop yawning."

Conversely, during a November 2022 VA examination, the Veteran reported his sleep apnea onset in 2003, that he reported chronic difficulty sleeping along with always being sleepy during the day. During a December 2023 VA examination, the Veteran reported his sleep apnea onset in 2008, but also that he had a heart attack last year, and his primary care provider sent him to a sleep study, and he was told he had sleep apnea. He also reported that his sleep continued to worsen and he had a sleep study this year and was prescribed a continuous positive airway pressure (CPAP) machine which he was still trying to get used to. During a July 2024 VA examination, the Veteran reported his sleep apnea onset in 2022, that he reported having a heart attack in 2022, that his primary care provider asked him how did he sleep and then put in a consult for a sleep study. During the July 2024 VA examination, the Veteran also reported he would wake up in the middle of the night for his back and have to get up to go to the restroom, but could not go and stated he would be up for a while. He also reported his spouse told him that he "roars in his sleep" and he also reported he would be fatigued through the day. During the July 2024 VA examination, the Veteran also reported he had been using his CPAP at night, that one night he went out of town and forgot the CPAP machine and stated he was up all night, and that his symptoms have improved since the CPAP.

Also, in May 2023, and again in January 2024, the Veteran through his attorney representative argued service connection was warranted for sleep apnea as secondary to service-connected IVDS and chronic pain syndrome.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish service connection on a direct incurrence basis, 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In addition, for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection on a presumptive basis may be established for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act), 117 P.L. 168 (enacted Aug. 10, 2022) favorably amended § 1117
d 1163, 1167 (Fed. Cir. 2004).

The term qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness (MUCMI) that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(2)(i).

The term MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). There must be objective indications of a qualifying chronic disability, which include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(1) and (3). A disability is considered chronic if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period.

Signs or symptoms which may be manifestations of an undiagnosed illness or MUCMI include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014).

In addition, under the PACT Act, VA is required to provide an examination and medical opinion addressing toxic exposure risk activity (TERA) participation when the Veteran submits a claim for compensation, has evidence of a disability, has evidence of participation in a TERA, including garrison exposure, and such evidence is not sufficient to establish service connection for the disability. See 38 U.S.C. § 1168(a). Here, in December 2022, VA issued Memorandum which documented the Veteran was a covered veteran under 38 U.S.C. § 1119, and in February 2023, VA issued Memorandum which reflected he had participation in a TERA.

Finally, service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Spicer v. McDonough, 61 F.4th 1360, 1363 (Fed. Cir. 2023) (secondary service connection requires "but-for causation," which is "broader than proximate causation"). In Spicer, the Federal Circuit held that under the causation standard of 38 U.S.C. § 1110, secondary service connection is warranted where a nonservice-connected disability would have been less severe "but-for"
granted for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Spicer v. McDonough, 61 F.4th 1360, 1363 (Fed. Cir. 2023) (secondary service connection requires "but-for causation," which is "broader than proximate causation"). In Spicer, the Federal Circuit held that under the causation standard of 38 U.S.C. § 1110, secondary service connection is warranted where a nonservice-connected disability would have been less severe "but-for" a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the nonservice-connected disability. Thus, for aggravation of nonservice-connected disabilities it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred.

38 C.F.R. § 3.310 requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. See 71 Fed. Reg. 52744 (2006). The Board also notes that 38 C.F.R. § 3.310(b) was addressed by the Court in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) but only to the extent that it invalidating 3.310(b) with respect to the use of the phrase "proximately due to" in the context of aggravation.

On September 13, 2022 VA received an intent to file claim, as evidenced by an acknowledgement letter on the same date, with an application for benefits, with a claim for sleep apnea, received within a year thereafter on October 28, 2022. Thus, the appeal period is from September 13, 2022, the date of the intent to file claim, as this claim was continuously pursued from this date, to August 12, 2024, the date the AOJ decision on appeal was issued.

Under the AMA, the Board is bound by favorable findings of the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104. The August 2024 AOJ decision on appeal provided favorable findings. Specifically, that the claimed primary disability, of IVDS of the thoracolumbar spine, was service-connected; that the evidence showed that the Veteran performed service in Southwest Asia between August 2, 1990 and July 21, 1991, that as the Veteran performed service in Southwest Asia theater of operations, he was exposed to environmental hazards and particulate matter from burn pits and participation in a TERA was conceded; and that the Veteran had been diagnosed with a disability, as obstructive sleep apnea was diagnosed by an August 2022 sleep study. Also, the Board observes November 2022, December 2023, and July 2024 VA examination reports also endorsed a diagnosis of obstructive sleep apnea.

Thus, the question becomes whether the Veteran's obstructive sleep apnea is related to service or is secondary to his service-connected IVDS, previously evaluated as lumbar spine degenerative disc disease.

In this regard, in a September 2022 private opinion (received in October 2022), entitled "Independent Medical Expert Opinion" D.A., M.D., J.D., opined that the Veteran's sleep apnea is more likely than not caused by and/or aggravated by the Veteran's service-connected IVDS and chronic pain syndrome due to his service connected disabilities. A nearly identical "Independent Medical Expert Opinion" was submitted by S.B., M.D. in May 2023.

The Board notes that D.A. is the Veteran's current representative and has been his representative since May 2023. Further, D.A. was the Veteran's representative from December 2012 until September 6, 2022, when VA received a letter from D.A. stating he was withdrawing his representation and "I no longer represent him for additional actions regarding his disability claims." He thereafter submitted his "Independent Medical Expert Opinion" the following month before resubmitting a VA Form 21-22a in May 2023.

In the case of Harvey v. Shulkin, 30 Vet. App. 10, (2018), the U.S. Court of Appeals for Veterans Claims (Court) addressed another case in which D.A. made similar submissions as a representative-witness. The Court
May 2023. Further, D.A. was the Veteran's representative from December 2012 until September 6, 2022, when VA received a letter from D.A. stating he was withdrawing his representation and "I no longer represent him for additional actions regarding his disability claims." He thereafter submitted his "Independent Medical Expert Opinion" the following month before resubmitting a VA Form 21-22a in May 2023.

In the case of Harvey v. Shulkin, 30 Vet. App. 10, (2018), the U.S. Court of Appeals for Veterans Claims (Court) addressed another case in which D.A. made similar submissions as a representative-witness. The Court discussed Rule 3.7 of the Model Rules of Professional Conduct (MRPC), which prohibits an attorney from acting as both witness and representative for a client. The Court noted that "both the Board and the Court have adopted the Rules as standards of conduct for attorney practice. 38 C.F.R. § 14.632 (d) (2017)."

Rule 3.7 is intended to protect the integrity of the advocate's professional role, and even an "attempt to submit [one's] own medical opinion in the text of an 'appeal brief' is emblematic of the confusion that the advocate-witness rule is intended to prevent." The Court found that D.A.'s submission in the Harvey case blurred the line between making a legal argument and providing a medical opinion to support service connection. His submission in this case is virtually the same as Harvey, including addressing the link between sleep apnea and another disorder (in Harvey, the other disorder was psychiatric). As noted above, the Board considers this to be a medical opinion, not legal argument, and it cannot accept this opinion as it violates Rule 3.7. Further, the Board does not find the fact that D.A. revoked representation for approximately six months, submitting the medical opinion during this period, to cure the violation of Rule 3.7. Likewise, the Board does not accept the May 2023 opinion of Dr. S.B. because her medical opinion is nearly identical to the medical opinion provided by the Veteran's attorney, which brings into question the credibility of the report. Additionally, her opinion shows her address and telephone number to be the same as D.A., and as such, she clearly appears to be professionally associated with D.A. For these reasons, the Board finds the medical opinions signed by D.A. and S.B. to have little to no probative value.

Also, VA examiners also addressed this claim as secondary to service-connected IVDS, previously evaluated as lumbar spine degenerative disc disease. Specifically, a November 2022 VA examiner found claimed condition was less likely than not proximately due to or the result of Veteran's service connected condition. As a rationale, the November 2022 VA examiner explained that although the relevant evidence did submit possible associations between posttraumatic stress disorder, chronic pain, and insomnia, to sleep apnea, it failed to present causation even through indirect pathology of IVDS to sleep apnea, and after review of medical literature, he could not find a causation between IVDS and sleep apnea, and thus, no nexus was established.

Thereafter, a July 2024 VA examiner also found claimed condition was less likely than not proximately due to or the result of Veteran's service connected condition. As a rationale, the July 2024 VA examiner explained obstructive sleep apnea syndrome was a very common sleep disorder and led to hypoxemia and sleep fragmentation. The July 2024 VA examiner further explained that pain and sleep influenced each other in many ways, and the relationship between them seemed to be bidirectional, that multiple biological and psychological factors may initiate and maintain pain, and among the factors affecting pain sensitivity were quantity and quality of sleep, which were both important in maintaining homeostasis of the pain-regulatory processes. The July 2024 VA examiner further explained that sleep disturbances were a common problem in patients with chronic pain, and evidence suggested that sleep loss caused hyperalgesia, that data from patients with obstructive sleep apnea syndrome supported a correlation between sleepiness and pain sensitivity, that studies suggested that sleep disruption was related to an increase in inflammatory mediators, that disordered sleep led to an increase in secretion of interleukin 6 and tumor necrosis factor alpha levels, that increased inflammatory mediators may lead to pain, and a review of medical literature suggested pain caused sleep disorders such as wakefulness and sleep apnea. The July 2024 VA examiner further explained there was a relationship between pain and sleep disturbances, and over 70 percent of patients with chronic pain disorders report sleep disruption, and lack of restful sleep increased hyperalgesia,
and evidence suggested that sleep loss caused hyperalgesia, that data from patients with obstructive sleep apnea syndrome supported a correlation between sleepiness and pain sensitivity, that studies suggested that sleep disruption was related to an increase in inflammatory mediators, that disordered sleep led to an increase in secretion of interleukin 6 and tumor necrosis factor alpha levels, that increased inflammatory mediators may lead to pain, and a review of medical literature suggested pain caused sleep disorders such as wakefulness and sleep apnea. The July 2024 VA examiner further explained there was a relationship between pain and sleep disturbances, and over 70 percent of patients with chronic pain disorders report sleep disruption, and lack of restful sleep increased hyperalgesia, and by contrast, sleep rebound, especially in non-REM sleep may have an analgesic effect. Hence, the July 2024 VA examiner explained pain induced sleep disorders and lack of sleep increased pain, and chronic pain patients had a high risk of sleep apnea, regardless of opioid prescription. The July 2024 VA examiner explained most patients were unaware of their increased risk and denied undergoing the necessary testing, and that greater attention to screening, testing, and education for sleep apnea needed to be paid in chronic pain patients, especially given the potentially dangerous ramifications of opioid-induced sleep apnea. However, the July 2024 VA examiner further explained sleep apnea and pain can be commonly experienced together, but there was no evidence that once caused the other and that the two conditions were found to have co-symptoms.

The November 2022 and July 2024 VA examiners' opinions, taken in combination, are persuasive, because they are based on an accurate medical history and provided explanations that contains clear conclusions and supporting data. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008).

The July 2024 VA examiner also addressed secondary aggravation. The July 2024 VA examiner found that regardless of an established baseline, the Veteran's claimed condition was at least as likely as not aggravated beyond its natural progression by his service-connected condition. As a rationale, the July 2024 VA examiner noted the Veteran reported he was unaware of sleep apnea or its symptoms until his primary care provided discussed it with him. The July 2024 VA examiner noted the Veteran stated he would wake up in the middle of the night due to back pain and would be unable to go back to sleep. The July 2024 VA examiner noted the Veteran reported a sleep study was done and revealed sleep apnea and that since use of the continuous positive airway pressure machine, he was able to rest better at night and did not seem to wake up frequently throughout the night. The July 2024 VA examiner explained that medical evidence suggested that pain can impair the sleep cycle, that more than 70 percent of patient with chronic pain disorders report sleep disruption, and that chronic pain patients had a high risk of sleep apnea, regardless of opioid prescription.

Thus, the Board concludes that although the July 2024 VA examiner provided a positive opinion on the basis of secondary aggravation, the VA examiner did not provide a baseline for the severity of the Veteran's obstructive sleep apnea or other persuasive explanation to support the rationale that the Veteran's obstructive sleep apnea was aggravated by his service-connected IVDS. Rather this opinion was based the Veteran's own report of waking up due to back pain. The Board finds such a report lacks credibility as it is inconsistent with the other clinical evidence of record. Specifically, rather than reporting waking up from back pain while sleeping, the Veteran's VA treatment records reflect he reported no problems sleeping and also reported back pain in other contexts. For example, proximate to the appeal period, a June 2022 VA treatment record documented the Veteran reported he slept on one pillow, that he went to bed at approximately 10:00 PM, that he did not wake up to urinate, that he woke up at 05:00 to 05:15 AM before the alarm went off, and he had no naps on weekdays or weekends. A July 2022 VA treatment record documented the Veteran reported "I sleep fine" that he was admitted with heart problems and was advised to be evaluated for sleep apnea, that he denied any problems with his sleep, that he had "no trouble falling sleep or staying asleep" and sometimes tended to wake one to two times up in the night not knowing why.

Also, during the appeal period, a September 2022 private treatment record documented the Veteran reported, that in June, he was sitting watching television and when he got up to go to bed, his right leg would not move no matter what he did, that he slept on the couch instead and when he awoke the next morning, he could move his right leg again. An October 2022 VA treatment record documented the Veteran worked outdoors for two hours with rest breaks due to back pain. A November 2022 VA treatment record documented the Veteran was "bothered by increased back pain with prolonged standing and walking." A January 2023 VA treatment record documented the Veteran reported taking breaks during yard work secondary to low back pain. A March 2023 VA treatment record documented the Veteran reported his lower back pain was worse when he out of a chair and when stood up straight pain got better and the pain was aggravated if he did too much. A November 2023 VA treatment record documented the Veteran was admitted for admitted for evaluation of a suppurative foot ulcer and overnight, he had one episode of severe foot pain overnight that woke him from sleep. March 2023, September 2023, and March 2024 VA treatment records documented the Veteran had a history of low back pain pain/neuropathy, that he was no longer on Gabapentin had no complaints today. A February 2024 private medical record documented the Veteran reported he has been doing well, that if he did not take Lyrica, he would have more pain at night, that he used to have more pain when he was going to bed, but now he had more pain and stiffness in the mornings.

Thus, in this instance there is not competent and credible evidence that indicates the Veteran's obstructive sleep apnea was aggravated by his IVDS, other than the Veteran's bare assertion of aggravation. Thus, there is no pre-decisional duty to assist error, and remand for another medical opinion based on secondary aggravation is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

Turning to other theories of entitlement, a December 2023 VA examiner addressed the claim on a direct incurrence basis. The December 2023 VA examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The December 2023 VA examiner found that based on review of the available evidence, it was less likely than not that the claimed condition was due to service as there is a lack of substantiating evidence supporting a nexus between the current diagnosis of obstructive sleep apnea and military service, and without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. Indeed, consistent with December 2023 VA examiner's opinion, the record reflects the Veteran was diagnosed with obstructive sleep apnea in August 2022, many years after separation from service.

Also, in addressing the claim on the basis of TERAs, a March 2023 VA examiner found the claimed condition was less likely than not caused by the indicated TERAs, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all TERAs of the Veteran. As a rationale, the March 2023 VA examiner explained the pathophysiology of obstructive sleep apnea involved that during sleep, when throat and tongue muscles were more relaxed, this soft tissue could cause the airway to become blocked and hence toxic burn pit exposure was not a cause for obstructive sleep as per the provided literature. The March 2023 VA examiner also cited to the provided literature, including as to specific risk factors for obstructive sleep apnea. Also, a December 2023 VA examiner found the claimed condition was less likely than not caused by the indicated TERAs, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERAs of the Veteran, and as rationale explained obstructive sleep apnea was not medically proven to be caused by exposure to burn pits.

Finally, in determining whether the Veteran's obstructive sleep apnea qualified as a MUCMI attributable to Gulf
to become blocked and hence toxic burn pit exposure was not a cause for obstructive sleep as per the provided literature. The March 2023 VA examiner also cited to the provided literature, including as to specific risk factors for obstructive sleep apnea. Also, a December 2023 VA examiner found the claimed condition was less likely than not caused by the indicated TERAs, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERAs of the Veteran, and as rationale explained obstructive sleep apnea was not medically proven to be caused by exposure to burn pits.

Finally, in determining whether the Veteran's obstructive sleep apnea qualified as a MUCMI attributable to Gulf War service, as discussed above, the March 2023 VA examiner explained the pathophysiology of obstructive sleep apnea involved that during sleep, when throat and tongue muscles were more relaxed, this soft tissue could cause the airway to become blocked. Thus, pathophysiology and etiology of the Veteran's obstructive sleep apnea are at least partially understood. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). Accordingly, service connection on a presumptive basis as due to a MUCMI attributable to Gulf War service is not warranted.

The March 2023, and December 2023 VA examiners' opinions, taken in combination, are persuasive, because they are based on an accurate medical history and provided explanations that contain clear conclusions and supporting data and are adequate for the Board to adjudicate these theories of entitlement. See Nieves-Rodriquez, 22 Vet. App. at 304.

While the Veteran believes his obstructive sleep apnea is related to his active service, or his secondary to service-connected IVDS, he has not been shown to have the requisite medical knowledge and expertise to be deemed competent to make these determinations. These issues are medically complex, as they require specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence discussed above.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for obstructive sleep apnea is not

warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Espinoza, 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.

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