SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, who served in the United States Navy from August 1972 to April 1974, appeals the denial of service connection for obstructive sleep apnea (OSA). The Veteran had previously been denied service connection for OSA by the Regional Office (RO) on multiple occasions, with the RO's latest decision in September 2024 finding that the evidence did not establish a link to the Veteran's service-connected posttraumatic stress disorder (PTSD) with secondary alcohol, cocaine, and opioid use disorders. The Veteran's attorney argued that the PTSD caused or aggravated the OSA, potentially through obesity as an intermediate step, and contended that a January 2023 opinion from Dr. D.B. was more probative than VA opinions. The Board reviewed conflicting medical evidence, including a March 2021 VA opinion that found OSA at least as likely as not aggravated by PTSD, but a March 2021 addendum and July 2022/September 2023 VA opinions that found no nexus or aggravation, citing anatomical factors and lack of direct causation. However, the Board found Dr. D.B.'s January 2023 opinion, which detailed a neurochemical cascade from PTSD stress leading to sleep fragmentation and airway instability, to be probative. The Board also noted that the July 2022 and September 2023 negative opinions applied an incorrect legal standard (proximate cause) which was later invalidated. Finding the evidence in approximate balance, the Board applied the benefit of the doubt doctrine, granting service connection for obstructive sleep apnea as secondary to the acquired psychiatric disorder.

Rationale

Current diagnosis of obstructive sleep apnea confirmed by VA exam.; Veteran has service-connected acquired psychiatric disorder.; Conflicting medical opinions regarding nexus between OSA and acquired psychiatric disorder.; Board found Dr. D.B.'s opinion probative regarding PTSD's role in OSA development/worsening.; Negative July 2022 and September 2023 opinions afforded no weight due to incorrect legal standard.; Evidence found in approximate balance, applying benefit of the doubt.; Grant of secondary service connection for OSA.

Full Decision Text

Citation Nr: A26005231
Decision Date: 01/21/26	Archive Date: 01/21/26

DOCKET NO. 250910-584293
DATE: January 21, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea is granted.

FINDING OF FACT

The Veteran's service-connected posttraumatic stress disorder with secondary alcohol use disorder, cocaine use disorder, opioid use disorder has caused or aggravated the Veteran's obstructive sleep apnea.

CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea as secondary to service-connected posttraumatic stress disorder with secondary alcohol use disorder, cocaine use disorder, opioid use disorder have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from August 1972 to April 1974.

In October 2020, the Veteran submitted a claim for obstructive sleep apnea service connection.  In March 2021, the RO denied service connection for sleep apnea.  In March 2022, the Veteran submitted a VA Form 20-0995 Decision Review Request- Supplemental Claim for obstructive sleep apnea service connection.  In July 2022, the RO implicitly found that new and relevant evidence had been received but denied service connection for obstructive sleep apnea.  In February 2023, the Veteran submitted another VA Form 20-0995 for obstructive sleep apnea service connection.  In September 2023, the RO found that new and relevant evidence had been received but denied service connection for obstructive sleep apnea.  In June 2024, the Veteran sought a Higher-Level Review of the obstructive sleep apnea service connection claim.  In September 2024, the RO denied service connection for obstructive sleep apnea.  The RO determined that the evidence did not show that sleep apnea was related to the service-connected condition of posttraumatic stress disorder (PTSD) with secondary alcohol use disorder, cocaine use disorder, opioid use disorder, nor was there any evidence of this disability during military service.  

In the September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct review docket.  As an appeal in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issue on appeal.  38 C.F.R. § 20.301.

The Board notes that the Veteran waived the right to a pre-decisional hearing before the RO.  See September 2025 Notice of Disagreement.

A total disability rating based on individual unemployability (TDIU) has not been raised by the Veteran and the evidence of record during the applicable review period.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  As such, a TDIU will not be adjudicated below.

Factual history

In January 1973, the Veteran reported general malaise.  In March 2021, the RO afforded the Veteran a Sleep Apnea Compensation and Pension (C&P) exam.  A March 2021 examiner diagnosed the Veteran with obstructive sleep apnea.  The Veteran stated that the onset was in 1972 with snoring and apneic breathing patterns.  The Veteran also stated that he would wake up in a panic/anxiety attack, unable to breathe until he was able to recognize this and begin breathing again.  

In March 2021, an examiner opined that the Veteran's obstructive sleep apnea was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness.  The March 2021 examiner reasoned that the obstructive sleep apnea was related to sexual trauma during boot camp.  The March 2021 examiner explained that the Veteran had documented PTSD which stemmed from military sexual trauma.  Results showed that 69.2 percent of participants had high risk for sleep apnea, and this risk increased with PTSD symptom severity.  The March 2021 examiner explained that every clinically significant increase in PTSD symptom severity was associated with a 40 percent increase in the probability of screening as high risk for sleep apnea.

The March 2021 clinician also opined that the Veteran obstructive sleep apnea was at least as likely as not aggravated beyond its natural progression by service-connected condition.  The
 illness.  The March 2021 examiner reasoned that the obstructive sleep apnea was related to sexual trauma during boot camp.  The March 2021 examiner explained that the Veteran had documented PTSD which stemmed from military sexual trauma.  Results showed that 69.2 percent of participants had high risk for sleep apnea, and this risk increased with PTSD symptom severity.  The March 2021 examiner explained that every clinically significant increase in PTSD symptom severity was associated with a 40 percent increase in the probability of screening as high risk for sleep apnea.

The March 2021 clinician also opined that the Veteran obstructive sleep apnea was at least as likely as not aggravated beyond its natural progression by service-connected condition.  The March 2021 clinician cited a summary of the study "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans," by Peter J. Colvonen, PhD, Tonya Masino, MD, Sean P.A. Drummond, PhD, Ursula S. Myers, MS, Abigail C. Angkaw, PhD, and Sonya B. Norman, PhD.  See https://aasm.org/study-finds-high-risk-of-sleep-apnea-in-young-veterans-with-ptsd/#:~:text=Results%20show%20that%2069.2%20percent,high%20risk%20for%20sleep%20apnea. 

A March 2021 clinician provided an addendum opinion that sleep apnea and PTSD were not medically related.  The March 2021 clinician reasoned that there is no mental condition that can cause sleep apnea. PTSD and obstructive sleep apnea share common symptoms of disrupted sleep patterns and non-restful sleep, according to the March 2021 clinician.  PTSD can interfere with sleep due to emotional and psychological issues, nightmares and hypervigilance with easy arousability during sleep whereas obstructive sleep apnea is a sleep disorder characterized by narrowing or collapse of the pharyngeal airway during sleep, according to the March 2021 clinician. It is caused by anatomical variations in the craniofacial features and/or neck. PTSD is a mental health disorder that in no way affects the anatomy of the upper airways and therefore cannot cause sleep apnea, concluded the March 2021 clinician. Therefore, no nexus or plausible secondary relationship was established for obstructive sleep apnea to PTSD, according to the March 2021 clinician.  The March 2021 clinician also opined that there was no medical evidence to suggest that the Veteran's obstructive sleep apnea has been aggravated beyond natural progression by the PTSD.  The March 2021 clinician reasoned that a mental health condition does not cause closure of the airway during sleep.  The March 2021 clinician reason that as obstructive sleep apnea does not cause closure of the airway it cannot cause increased closure.

In March 2022, the Veteran submitted journal articles regarding sleep disorders in the Veteran population.  In July 2022, the RO obtained medical opinions on whether the Veteran's obstructive sleep apnea is due to or aggravated by his acquired psychiatric disorder, to include obesity as an intermediate step.  A July 2022 clinician opined that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition.  The July 2022 clinician also opined that the Veteran's obstructive sleep apnea was not at least as likely as not aggravated beyond its natural progression by service-connected condition.  The July 2022 clinician reasoned that the conditions of OSA and PTSD with secondary alcohol use disorder, cocaine use disorder, opioid use are not medically related. The July 2022 clinician reasoned that obstructive sleep apnea is a separate entity entirely from the PTSD with secondary alcohol use disorder, cocaine use disorder, opioid use and unrelated to it. The July 2022 clinician reasoned that a thorough review of medical literature failed to demonstrate a causal relationship.  The July 2022 clinician reasoned that obesity is most commonly caused by a combination of excessive food intake, and lack of physical activity, which is a choice.  The July 2022 clinician reasoned that genetic and involuntary environmental contribution to body weight outweigh voluntary lifestyle choices.  The July 2022 clinician reasoned that while some studies have shown that obesity, obstructive sleep apnea, and PTSD with secondary alcohol use disorder, cocaine use disorder, opioid use frequently co-exist, there was no credible medical research that proved a causative relationship. Sleep apnea was not caused by any mental health condition. Therefore, a nexus had not been established.

A July 2022 clinician also opined that
 demonstrate a causal relationship.  The July 2022 clinician reasoned that obesity is most commonly caused by a combination of excessive food intake, and lack of physical activity, which is a choice.  The July 2022 clinician reasoned that genetic and involuntary environmental contribution to body weight outweigh voluntary lifestyle choices.  The July 2022 clinician reasoned that while some studies have shown that obesity, obstructive sleep apnea, and PTSD with secondary alcohol use disorder, cocaine use disorder, opioid use frequently co-exist, there was no credible medical research that proved a causative relationship. Sleep apnea was not caused by any mental health condition. Therefore, a nexus had not been established.

A July 2022 clinician also opined that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The July 2022 clinician reasoned that obstructive sleep apnea was not diagnosed until after military service. Review of the service treatment records showed no evidence of the diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty. The July 2022 clinician reasoned that observed snoring, unrestful sleep, "gasping", trouble sleeping, shallow breathing, and insomnia were not pathognomonic for sleep apnea.  The July 2022 clinician reasoned that sleep apnea was diagnosed by polysomnography, and an apnea/hypoxia index (AHI or PRDI) was the diagnostic standard for obstructive sleep apnea. An AHI greater than 5 or PRDI greater than 15 indicated sleep apnea, which was not diagnosed until after military service. 

In a January 2023 medical opinion (received February 2023), Dr. D.B. opined that obstructive sleep apnea is a multi-factorial disease, so despite the Veteran's history of obesity, it was at least as likely as not that the Veteran's obstructive sleep apnea developed secondary to his service-connected PTSD.  Dr. D.B. explained that the extreme stress which triggers PTSD starts a cascade of neurochemical changes that cause sleep fragmentation and recurrent arousals, which in turn promotes the development or worsening of obstructive sleep apnea.  Specifically, the low arousal threshold of PTSD contributes to obstructive sleep apnea development based on a state of instability. PTSD causes fragmented sleep, and sufferers wake up too easily. This does not allow sufficient time for the accumulation of respiratory stimuli to activate upper airway dilator muscles and promote pharyngeal patency. The throat becomes unstable and thus PTSD causes or worsens the airway condition because a weakened throat is the underlying problem in obstructive sleep apnea.

In August 2023, the RO obtained another Sleep Apnea examination report.  An August 2023 clinician diagnosed the Veteran with obstructive sleep apnea.  A September 2023 clinician opined that the Veteran's obstructive sleep apnea was less likely than not (likelihood was less than approximately balanced or nearly equal) proximately due to or the result of Veteran's service-connected condition.  The September 2023 clinician reason that the Veteran was diagnosed with sleep apnea in December 2007. The general trend in subsequent appointments related to sleep apnea and CPAP compliance indicated the Veteran had improved sleep, decreased AHI, compliance that improved over time, the ability to try different equipment, and access to a second CPAP to use while driving long distance trucks. Records indicated the Veteran initially stopped using substances on or around the time of sleep apnea diagnosis. Records indicated Veteran was diagnosed with PTSD with secondary alcohol use disorder, cocaine use disorder, opioid use disorder in 2019. Records indicate pre-existing issues prior to service. However, after an MST event in boot camp, it led to a significant number of undesirable circumstances in the Veteran's life.  The September 2023 clinician considered the various factors confounding the Veteran's sleep apnea.  The September 2023 clinician stated regarding obesity that "The risk of obstructive sleep apnea correlates well with the body mass index (BMI) [5,14]." (Kline, 2023); "major predisposing factor for sleep apnea is excess body weight. It has been estimated that 58% of moderate to severe obstructive sleep apnea is attributable to obesity." (Menmon & Manganaro, 2023); African American race - "more prevalent in African Americans who are younger than 35 years old compared with White Americans of the same age group, independent of body weight [8,9] (Kline, 2023); male sex - three times more likely compared to females (Kline, 2023); history of prescription muscle relaxers and opioids for pain management - "While a variety of substances and medications
 body mass index (BMI) [5,14]." (Kline, 2023); "major predisposing factor for sleep apnea is excess body weight. It has been estimated that 58% of moderate to severe obstructive sleep apnea is attributable to obesity." (Menmon & Manganaro, 2023); African American race - "more prevalent in African Americans who are younger than 35 years old compared with White Americans of the same age group, independent of body weight [8,9] (Kline, 2023); male sex - three times more likely compared to females (Kline, 2023); history of prescription muscle relaxers and opioids for pain management - "While a variety of substances and medications, including alcohol, benzodiazepines, narcotics, and possibly gabapentinoids may exacerbate obstructive sleep apnea, a causative link is unproven [24,25]." (Kline, 2023); smoking - can increase risk of OSA or worsen it (Kline, 2023); history of nasal congestion in records, possible septal deviation (seen once in record by ENT) - "Nasal congestion confers an approximately two-fold increase in the prevalence of OSA compared with controls, regardless of the cause [14]." (Kline, 2023).  The September 2023 clinician also considered Dr. D.B.'s opinion.  The September 2023 clinician reasoned that for the Veteran, his strongest risk factor is obesity. The September 2023 clinician stated that the Veteran also had risk factors as noted above.  The September 2023 clinician explained that obstructive sleep apnea occurs as a result of anatomical issues that cause obstruction preventing airflow through the nose and mouth while asleep (Kline, 2023). PTSD is not a known risk factor for obstructive sleep apnea, stated the September 2023 clinician.  Additionally, the September 2023 clinician stated that there was a positive trend related to sleep apnea supporting improvement overall (including improved sleep, CPAP compliance, cessation of multiple substances). It was noted in the August 2023 C&P exam that "Per medical records Veteran using CPAP machine for obstructive sleep apnea and tolerating well, however still endorses symptoms of obstructive sleep apnea." Available records indicated that the Veteran had acquired numerous health conditions whose symptoms may mimic those of obstructive sleep apnea, according to the September 2023 clinician.  Therefore, the September 2023 clinician concluded that the Veteran's sleep apnea was less likely than not aggravated beyond its natural progression by his service-connected PTSD with secondary alcohol use disorder, cocaine use disorder, and opioid use disorder.

Law

VA grants service connection for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must at least show the appellant has the disability for which benefits are being claimed, else, there can be no valid claim because, for all intents and purposes, there is no present disability to in turn relate or attribute to his military service.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).  Pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability if it reaches the level of a functional impairment of earning capacity.  Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018).

Service connection may be granted on a secondary basis for a disability that is due to or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires sufficient evidence to show that (1
1992).  A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).  Pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability if it reaches the level of a functional impairment of earning capacity.  Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018).

Service connection may be granted on a secondary basis for a disability that is due to or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires sufficient evidence to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead holding "but for" causation or aggravation is enough to show entitlement to secondary service connection). Aggravation is an incremental increase in disability, regardless of its permanence.  Ward v. Wilkie, 31 Vet. App. 233, 241-242 (2019).

VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131 and whether obesity may be considered a disability for purposes of secondary service connection.  In general, the opinion concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service connected on a direct or secondary basis.  VAOPGCPREC 1-2017 (January 6, 2017).   However, the OGC opinion found that obesity can constitute an "intermediate step" for service connection on a secondary basis under 38 C.F.R. § 3.310(a).  Id. In Walsh v. Wilkie, the United States Court of Appeals for Veterans Claims (the Court) held the Board must consider the obesity-intermediate-step theorem, that is to say, the proper interpretation of General Counsel's Precedent Opinion 1-2017 requires consideration of proximate causation: (1) If the service-connected disability caused the veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability and (3) if this subsequent disability would not have occurred but for obesity.  VAOPGCPREC 1-2017 (January 6, 2017); Walsh v. Wilkie, 32 Vet. App. 300, 304 (2020).

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008).

"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 claimant." 38 U.S.C. § 5107(b).  "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other."  Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

Entitlement to service connection for obstructive sleep apnea

The Veteran's Attorney asserts that the Veteran has obstructive sleep apnea that
, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b).  "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other."  Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

Entitlement to service connection for obstructive sleep apnea

The Veteran's Attorney asserts that the Veteran has obstructive sleep apnea that is caused or aggravated by his service-connected posttraumatic stress disorder (PTSD) with secondary alcohol use disorder, cocaine use disorder, opioid use disorder (hereafter "acquired psychiatric disorder"). See September 2025 Notice of Disagreement.  The Veteran's Attorney also asserts that the Veteran's service-connected PTSD caused or aggravated the Veteran's sleep apnea by way of obesity as an intermediate step.  See March 2022 Attorney's brief.  The Veteran's Attorney also asserts that Dr. D.B.'s report should be considered more probative than any other medical evidence, including the VA medical opinion dated March 25, 2021 and July 21, 2022.  See February 2023 Attorney's Brief.  For the reasons identified below, the Board finds the evidence is in approximate balance regarding whether the Veteran's obstructive sleep apnea resulted from or was aggravated by his service-connected acquired psychiatric disorder.  As such, service connection is granted. 

The initial question is whether the Veteran has a current diagnosis.  The Board notes that the RO found the Veteran has a current disability.  See September 2024 Rating Decision. He was diagnosed with obstructive sleep apnea during the March 2021 VA examination. The Board is bound by this favorable finding.

Regarding the second element of secondary service connection, the Veteran is currently service connected for an acquired psychiatric disorder.

The third element of secondary service connection is a nexus between the current disability and a service-connected disability.  The Board notes that the RO found the Veteran's obstructive sleep apnea was secondary to service-connected disability.  See September 2024 Rating Decision.  As noted above, that nexus may be established via causation or aggravation.  Here, the competent medical evidence of record is in approximate balance with other evidence of record and thus the Board finds that Veteran's obstructive sleep apnea was caused or aggravated by his acquired psychiatric disorder.

Here, the most relevant evidence is the March 2021 and January 2023 opinions of record.  Both examiners reviewed the Veteran's claims file.  As stated above, the March 2021 examiner opined that the Veteran had obstructive sleep apnea which was at least as likely as not aggravated beyond its natural progression by the Veteran's acquired psychiatric disorder. The March 2021 examiner only cited to the study by Colvonen, et. al. in the reasoning.  However, in a January 2023 opinion, Dr. D.B. explained that the extreme stress which triggers PTSD starts a cascade of neurochemical changes that cause sleep fragmentation and recurrent arousals, which in turn promotes the development or worsening of obstructive sleep apnea.  Specifically, the low arousal threshold of PTSD contributes to obstructive sleep apnea development based on a state of instability. PTSD causes fragmented sleep, and sufferers wake up too easily. This does not allow sufficient time for the accumulation of respiratory stimuli to activate upper airway dilator muscles and promote pharyngeal patency. The throat becomes unstable and thus PTSD causes or worsens the airway condition because a weakened throat is the underlying problem in obstructive sleep apnea.  The Board finds Dr. D.B.'s opinion and reasoning probative.   

While there was a separate negative March 2021 secondary service connection opinion, it appeared to be based on the prompt of the question, which premised that sleep apnea and PTSD were not medically related.  While there were negative July 2022 and September 2023 secondary service connection opinions, they applied the wrong proximate causation legal standard. See Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead holding "but for" causation or aggravation is enough to show entitlement to secondary service connection).  As such, the July 2022 and September 2023 secondary service connection opinions are afforded no probative weight.

Accordingly, the Board finds that the evidence of secondary service connection between the Veteran's current disability and his acquired psychiatric disorder is at least in approximate balance. 
.  While there were negative July 2022 and September 2023 secondary service connection opinions, they applied the wrong proximate causation legal standard. See Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead holding "but for" causation or aggravation is enough to show entitlement to secondary service connection).  As such, the July 2022 and September 2023 secondary service connection opinions are afforded no probative weight.

Accordingly, the Board finds that the evidence of secondary service connection between the Veteran's current disability and his acquired psychiatric disorder is at least in approximate balance.  As such, the Board affords the Veteran the benefit of the doubt and finds that the Veteran's acquired psychiatric disorder has caused or aggravated his obstructive sleep apnea.  Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The criteria for service connection for obstructive sleep apnea are met.  

As there is no reduction in benefits in the grant of secondary service connection, the Board will not address other theories of entitlement such as direct service connection.

 

 

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Koottappillil, Arun X.

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.