SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, a veteran who served from August 1990 to July 1995, appeals the denial of service connection for sleep apnea. The Veteran contended that his sleep apnea was secondary to his service-connected right knee disability, arguing that the knee condition caused weight gain, which in turn caused the sleep apnea. The Board reviewed the evidence of record at the time of the April 2019 AOJ decision, noting that the Veteran's sleep apnea was diagnosed over 10 years after separation from service. An April 2019 VA examiner opined that the sleep apnea was less likely than not related to the service-connected knee condition, finding no nexus in the available records. The Board found the evidence persuasively weighed against a service connection, noting the lack of evidence supporting the Veteran's theory of weight gain as an intermediate step and that the Veteran's contentions were speculative. The Board gave more weight to the competent medical evidence, concluding that the weight of the evidence was against the claim. Service connection for sleep apnea was denied.

Rationale

No nexus between sleep apnea and service-connected right knee disability.; Veteran's theory of weight gain as intermediate step is speculative.; Evidence weighs against claim; VA examiner opined less likely than not related to service.

Full Decision Text

Citation Nr: A26008466
Decision Date: 01/29/26	Archive Date: 01/29/26

DOCKET NO. 200327-79381
DATE: January 29, 2026

ORDER

Entitlement to service connection for sleep apnea is denied.

FINDING OF FACT

The Veteran does not have sleep apnea that was incurred in or due to his time in service.

CONCLUSION OF LAW

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

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1990 to July 1995.

In the March 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held by the undersigned on October 1, 2024.

Therefore, the Board may only consider the evidence of record at the time of the April 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302 (a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302 (a), 20.801. 

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

Entitlement to service connection for sleep apnea.

The Veteran contends that his sleep apnea was caused by his service-connected right knee disability and ACL reconstructive surgery.  See October 2024 Hearing Transcript.  

He also contends that he started to gain weight from his right knee disability, which is a cause of sleep apnea.  Id.  

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b); see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). 

The Board notes that although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability.  Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020).

On his initial claim, the Veteran
 § 3.310 (b); see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). 

The Board notes that although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability.  Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020).

On his initial claim, the Veteran contended that his sleep apnea was secondary to his right knee.  See December 2018 VA Form 21-526EZ, Fully Developed Claim.  During the October 2024 Board Hearing, the Veteran raised a new theory of entitlement in that his right knee disability caused him to gain weight and that weight gain is a cause of sleep apnea.  As there was no evidence of record raising the claim of secondary service connection with obesity as an intermediate step at the time of the April 2019 decision on appeal, there is no pre-decisional duty to assist error that a medical opinion was not obtained.  See 38 C.F.R. § 20.802.  Thus, a remand for an opinion on this theory of entitlement is not warranted.  

The Board concludes that, while the Veteran has a current sleep apnea disability, the evidence of record persuasively weighs against finding that the Veteran's sleep apnea is due to or the result of or aggravated by a service-connected disability.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 (a). 

An April 2019 VA examiner opined that the Veteran's sleep apnea is less likely than not due to or the result of the Veteran's service-connected right knee condition.  In reaching this rationale, the examiner stated that a review of the available records shows no relationship to the service-connected knee condition.  Therefore, no nexus has been established.  

Treatment records show that the Veteran was first diagnosed with sleep apnea over 10 years after his separation from active service.  See October 2008, Sleep Medicine Note, Houston VAMC.  While the Veteran has reported problems with sleeping and right knee pain, there is no indication that the right knee disability has caused or aggravated his sleep apnea, or weight gain.  In this regard, it is important for the Veteran to understand that there are other ways to lose weight other than, for example, run.  The Veteran's theory is based on deep conjecture without evidence or any indication in this record that the Veteran attempted to lose weight.  While the Board has taken the Veteran's concerns seriously, the evidence simply provides against this claim.   

During the October 2024 Board Hearing, the Veteran claimed there are medical journals from the Archives of Medical Science supporting his claim that sleep apnea can be caused by having ACL reconstructive surgery.  He also described that someone could end up with sleep apnea after ACL surgery due to discomfort in the knee.  However, the Veteran did not submit any additional evidence in support of his contentions.  The Veteran is speculating.  While the Board would not dispute the fact that surgery of this type "could" cause sleep apnea, that is not the standard the Board use.  The key question is it at least a likely as not (very generally a 50% or greater chance) that the Veteran's knee problem caused the Veteran to gain weight (not withstanding such acts as, for example, reducing calories) and that weight gain caused the Veteran's sleep apnea. 

The Board must find that the medical records provide highly probative evidence against this claim, indicating a problem that began after service with no connection to service. 

The Board also acknowledges and has considered the Veteran's statements that his sleep apnea was incurred in and due to his time in service, including as due to his right knee disability.  However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his sleep apnea.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board provides more weight to the competent medical evidence of record.

In sum, the record does not reflect that sleep apnea was caused or aggravated by the service-connected right knee disability.  Finally, the record is negative for any competent medical evidence in support of the claim, to include any medical opinions relating the Veteran's sleep apnea
, including as due to his right knee disability.  However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his sleep apnea.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board provides more weight to the competent medical evidence of record.

In sum, the record does not reflect that sleep apnea was caused or aggravated by the service-connected right knee disability.  Finally, the record is negative for any competent medical evidence in support of the claim, to include any medical opinions relating the Veteran's sleep apnea to any aspect of service.  Thus, the Board must conclude that the weight of the evidence is against the claim and service connection for sleep apnea is not warranted.  See 38 U.S.C. § 5107 (b).

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cochran, Laura

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.