Case A26018361

Summary

The Veteran, who served from February 1996 to February 2000, appeals the denial of service connection for bilateral foot conditions and obstructive sleep apnea (OSA). The Veteran also sought an increased rating for a right shoulder condition, which was withdrawn and dismissed. The Board found new and relevant evidence warranted readjudication for the bilateral feet and OSA claims. For the bilateral feet, the Veteran claimed pain since service due to marching and in-service back and ankle pain. However, service treatment records were negative for foot conditions, and the VA examiner opined the current bilateral plantar fasciitis was less likely than not related to service, citing lack of in-service documentation and no clear link to service-connected back or ankle issues. The Board found the VA opinion most probative, denying service connection for the feet. For OSA, the Veteran claimed it was secondary to his service-connected lumbar strain, citing chronic pain leading to weight gain and subsequent OSA. While VA opinions found no direct nexus, citing different pathophysiology for pain and OSA, a private physician opined it was at least as likely as not that OSA was related to service-connected pain, weight gain, and inability to exercise. The Board found the private opinion persuasive, resolving doubt in the Veteran's favor, and granted service connection for OSA as secondary to the lumbar strain.

Full Decision Text

Citation Nr: A26018361
Decision Date: 03/02/26	Archive Date: 03/02/26

DOCKET NO. 211004-189078
DATE: March 2, 2026

ORDER

Entitlement to a rating in excess of 20 percent for right shoulder acromioclavicular joint osteoarthritis (claimed as right shoulder condition) has been withdrawn and is dismissed.

New and relevant evidence having been received, the appeal to readjudicate the claim for service connection for a left foot pain, to include plantar fasciitis is granted. 

New and relevant evidence having been received, the appeal to readjudicate the claim for service connection for a right foot pain, to include plantar fasciitis is granted.  

New and relevant evidence having been received, the appeal to readjudicate the claim for service connection for an obstructive sleep apnea disability is granted. 

Entitlement to service connection for a left foot pain disability is denied. 

Entitlement to service connection for a right foot pain disability is denied. 

Entitlement to service connection for an obstructive sleep apnea, as secondary to the lumbar strain disability, is granted. 

FINDINGS OF FACT

1. During the May 2025 Board hearing the Veteran indicated that he wished to have the increased rating claim withdrawn. 

2. Since the most recent final decision in April 2021, new and relevant evidence has been received in relation to the claim for service connection for a left foot disability. 

3. Since the most recent final decision in April 2021, new and relevant evidence has been received in relation to the claim for service connection for a right foot disability.

4. Since the most recent final decision in July 2021, new and relevant evidence has been received in relation to the claim for service connection for a sleep apnea disability.

5. The Veteran's left foot pain is not related to service. 

6. The Veteran's right foot pain is not related to service.

7. Resolving doubt in favor of the Veteran, the Veteran's sleep apnea disability is related to the service-connected lumbar strain disability.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for right shoulder acromioclavicular joint osteoarthritis are met. 38 C.F.R. § 20.205.

2. The April 2021 rating decision that denied service connection for a left foot disability is final, but new and relevant evidence has been received warranting readjudication of that claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(d), 3.2501, 20.1103.

3. The April 2021 rating decision that denied service connection for a right foot disability is final, but new and relevant evidence has been received warranting readjudication of that claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(d), 3.2501, 20.1103.

4. The July 2021 rating decision that denied service connection for a sleep apnea disability is final, but new and relevant evidence has been received warranting readjudication of that claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(d), 3.2501, 20.1103.

5. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

7. The criteria for service connection for a sleep apnea disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1996 to February 2000. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2021 and August 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony at a May 2025 hearing before a Veterans Law Judge.  A transcript of the hearing is associated with the claims folder.

The claim is now before the Board on an April 2022 Hearing
. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1996 to February 2000. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2021 and August 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony at a May 2025 hearing before a Veterans Law Judge.  A transcript of the hearing is associated with the claims folder.

The claim is now before the Board on an April 2022 Hearing Review Request by the Veteran under the Appeals Modernization Act (2019) ("AMA"). Under the AMA, when a claimant seeks appellate review through the Board's hearing docket, the Board may consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days of the hearing. Pub. Law 115-55 (Aug. 23, 2017), 131 Stat. 1114, 38 U.S.C. § 7113(b). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the VA Form 10182 was received, (2) evidence submitted during the period after the VA Form 10182 was received and the day before the Board hearing, and (3) evidence received 91 or more days after the Board hearing. 38 C.F.R. § 20.303.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. Here there are VA treatment records regarding sleep apna that were added to the file in October 2021. If the Veteran would like VA to consider any evidence that was added to the claims file 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.  

Withdrawal

1. Entitlement to a rating in excess of 20 percent for a right shoulder disability

An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.? 38 C.F.R. § 20.205.? Withdrawal may be made by the appellant or by his or her authorized representative.? 38 C.F.R. § 20.205.? In the present case, during the May 2025 Board hearing the Veteran withdrew the increased rating claim for the right shoulder disability. The Veteran indicated that he understood that he may lose the effective date if he attempts to file another increased rating claim. Therefore, there remains no increased rating claim for appellate consideration.?Accordingly, this claim and it is dismissed.

New and Relevant Evidence

2. Readjudication of service connection for a left foot disability

3. Readjudication of service connection for a right foot disability

4. Readjudication of service connection for an obstructive sleep apnea disability 

Under the AMA, VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501. New evidence is defined in the regulations governing supplemental claims filed under the AMA as "evidence not previously part of the actual record before agency adjudicators." Relevant evidence is defined as "information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. See 38 C.F.R. § 3.2501(a). In order to readjudicate a supplemental claim filed under the AMA, the evidence received must be new and relevant. Id. (emphasis added.)

In this case a November 2020 rating decision denied the service connection claims for the left foot, right foot, and sleep apnea disabilities. The bilateral feet were denied for a lack of a diagnosis. The sleep apnea was denied for a lack of nexus, i.e. the evidence failed to show the current disability was related to service. In December 2020 the Veteran filed a supplemental claim for the bilateral feet and sleep apnea claims. A January 2021
 raises a theory of entitlement that was not previously addressed. See 38 C.F.R. § 3.2501(a). In order to readjudicate a supplemental claim filed under the AMA, the evidence received must be new and relevant. Id. (emphasis added.)

In this case a November 2020 rating decision denied the service connection claims for the left foot, right foot, and sleep apnea disabilities. The bilateral feet were denied for a lack of a diagnosis. The sleep apnea was denied for a lack of nexus, i.e. the evidence failed to show the current disability was related to service. In December 2020 the Veteran filed a supplemental claim for the bilateral feet and sleep apnea claims. A January 2021 rating decision found new and relevant evidence had been received, readjudicated the claims, and denied them. In January 2021 the Veteran submitted a supplemental claim for the bilateral feet and sleep apnea claims. In a January 2021 statement the Veteran indicated he wanted reconsideration of his claims as he believes he should have sought secondary service connection for the claims. A February 2021 rating decision deferred all of the claims to provide a VA examination and opinion. A February 2021 rating decision found new and relevant evidence had been received, readjudicated the claims, and denied them. In March 2021 the Veteran filed a supplemental claim for the bilateral feet and sleep apnea claims. An April 27, 2021, rating decision denied the claims due to a lack of new and relevant evidence.

In May 2021 the Veteran filed a supplemental claim for the bilateral feet disabilities. In June 2021 the Veteran filed a supplemental claim for the sleep apnea claim. A July 1, 2021 rating decision found new and relevant evidence had been received, readjudicated the claim, and denied sleep apnea. On July 27, 2021, the Veteran filed a supplemental claim for the sleep apnea claim. A July 31, 2021, rating decision found new and relevant evidence has not been received for the sleep apnea claim. An August 2021 rating decision found new and relevant evidence has not been received for the bilateral feet claim. An October 2021 VA form 10182 for the bilateral feet and sleep apnea disabilities was completed and this appeal followed.  

As noted above, the Veteran has filed multiple supplemental claims for the bilateral feet and sleep apnea claims. The last final supplemental claim for the bilateral feet claims was adjudicated in an April 2021 rating decision. The last final supplemental claim for the sleep apnea claim was adjudicated in a July 2021 rating decision. In this case the Veteran did not timely appeal the April 2021 bilateral feet disability claims and the July 2021 sleep apnea claim, nor did he submit new and  relevant evidence for those rating decisions. Therefore, the April 2021 and July 2021 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

When the Veteran filed the May 2021 supplemental claim for the bilateral feet the new evidence was listed as March 2021 VA treatment X-rays. A review of the evidence post April 2021 revealed a March 19, 2021, radiology report for the feet demonstrating an impression of borderline pes cavus. 

When the Veteran filed the July 2021 supplemental claim for OSA the new evidence listed on the form was a headaches VA examination and anxiety depression decision letter. During the evidentiary period the Veteran's attorney submitted a July 2021 private sleep apnea opinion. 

A review of the record indicates the evidence filed post the April 2021 rating decision for the bilateral feet is new. Although the March 19, 2021, radiology report was of record prior to the April 2021 rating decision, added to the file on April 26, 2021, the April 27, 2021, rating decision did not indicate review of these treatment records. They are relevant as they include information that tends to prove or disprove a matter at issue in a claim, i.e., whether the Veteran has a current bilateral feet disability. 

A review of the record indicates the evidence filed post the July 1, 2021, rating decision for the sleep apnea, is new. The July 2021 private etiology opinion was submitted on July 27, 2021, and again on June 2, 2025. The opinion was not of record at the time of the July 1, 2021, rating decision. Likewise, the private opinion is relevant as it includes information that tends to prove or disprove a matter at issue in a claim, i.e., whether the Veteran's sleep apnea claim is related to service.  

Accordingly, the Board finds
 in a claim, i.e., whether the Veteran has a current bilateral feet disability. 

A review of the record indicates the evidence filed post the July 1, 2021, rating decision for the sleep apnea, is new. The July 2021 private etiology opinion was submitted on July 27, 2021, and again on June 2, 2025. The opinion was not of record at the time of the July 1, 2021, rating decision. Likewise, the private opinion is relevant as it includes information that tends to prove or disprove a matter at issue in a claim, i.e., whether the Veteran's sleep apnea claim is related to service.  

Accordingly, the Board finds that this evidence is new and relevant to the claim, and readjudication of the service-connection claims for the bilateral feet and sleep apnea are warranted.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (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).

For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability that is shown to be 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 (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Service connection is also warranted for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection under 38 C.F.R. § 3.310 (a) is warranted where a non-service-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 non-service-connected disability. Spicer v. McDonough, 61 F.4th 1360, 1364-66 (2023) (invalidating the requirement of "proximate cause" and instead holding "but for" causation or aggravation is enough to show entitlement to secondary service connection).

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Entitlement to service connection for a left foot disability 

2. Entitlement to service connection for a right foot disability 

The Veteran claims his bilateral feet disability is related to service. Specifically, during the May 2025 Board hearing the Veteran indicated he had foot pain in 1966 due to marching on hard roads. He purchased inserts to place in his boots. For the reasons discussed below, the Board finds
 of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Entitlement to service connection for a left foot disability 

2. Entitlement to service connection for a right foot disability 

The Veteran claims his bilateral feet disability is related to service. Specifically, during the May 2025 Board hearing the Veteran indicated he had foot pain in 1966 due to marching on hard roads. He purchased inserts to place in his boots. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran's current disability is related to service. Therefore, service connection is not warranted.

Service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a bilateral foot disability. On the November 1999 separation examination normal clinical findings were noted for the feet. On the concurrent report of medical history the Veteran denied foot trouble. 

Post service, a January 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with bilateral plantar fasciitis. The Veteran indicated he has had foot pain since 1996 however he believes his condition is related to his in-service back and ankle pain. The examiner opined that the claimed condition is less likely as not proximately due to or the result of a service-connected disability. It was reasoned that while there is reported history of dorsal lateral foot pain, there were none reflected on the current examination. It was noted that there is no evidence in the STRs, medical records, or current examination of any foot condition that would or could be caused by low back pain or a right ankle condition. 

In March 2021 the Veteran submitted an article that concluded that foot pain and low back pain are related, noting the complications with the low back may result in foot weakness, limited range of motion, and inability to shift weight. 

The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disabilities are not related to service.

In this regard the Board finds the January 2021 VA examination discussed above, is the most probative evidence of record. The examiner found the disabilities are not related to service. It is supported by an adequate rationale and there are no contrary medical opinions of record. While the examiner did not directly opine whether the bilateral feet disability is related to service, the Board notes that the examiner specifically reasoned that there is no evidence in the STRs of any foot condition that would or could be caused by low back pain or a right ankle condition. Notably the Veteran alleged that his foot pain began in service as a result of in-service back pain. The Board finds the opinion and rationale adequately addresses direct and secondary service connection. Therefore, the Board finds the January 2021 VA opinion is the most probative evidence.

The Board acknowledges the article the Veteran submitted on foot pain and low back pain as related. However, the article was very general and did not address the Veteran's current disability. Furthermore, a comorbidity with foot pain and low back pain is not sufficient to meet the proximate cause standard outlined in 38 C.F.R.§ 3.310.

The only other evidence relating the Veteran's bilateral feet disability to an in-service injury is the Veteran's lay statements. However, these statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology).  As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address.

Accordingly, service connection for a bilateral feet disability is denied. As the weight of the evidence is persuasively against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56.

3. Entitlement to service connection for a sleep apnea disability 

The Veteran claims his
 he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address.

Accordingly, service connection for a bilateral feet disability is denied. As the weight of the evidence is persuasively against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56.

3. Entitlement to service connection for a sleep apnea disability 

The Veteran claims his sleep apnea disability is related to service. Specifically, he argues it is related to this chronic pain as a result of the lumbar strain disability.   For the reasons discussed below, the Board finds service connection is warranted.

STRs do not reflect any symptoms, diagnosis, or treatment for a sleep related disability. The November 1999 separation examination did not reveal any breathing of sleep abnormalities. On the concurrent report of medical history the Veteran denied trouble sleeping. 

Post service, a July 2020 sleep diagnostic study diagnosed the Veteran with severe obstructive sleep apnea. 

A January 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with obstructive sleep apnea. The examiner opined that the Veteran's sleep apnea was less likely as not proximately due to or the result of his service-connected disabilities. It was reasoned that:

Chronic musculoskeletal pain result in changes in the pain receptive neuron in spinal cord which lead to perception of pain even with non-nociceptive stimulus, for e.g., turning the body or moving the legs results in pain which wakes patients from sleep. This patient also has sleep apnea. Pathophysiology of sleep apnea is that during REM sleep, the muscle tone of the throat and neck, as well as the vast majority of all skeletal muscles, is almost completely attenuated, allowing the tongue and soft palate/oropharynx to relax, and in the case of sleep apnea, to impede the flow of air to complete collapse which leads to low blood oxygen level and neurological arousal. Pathophysiology of sleep apnea is different from poor sleep due to chronic pain. Based on pathophysiology direct nexus between sleep apnea and chronic pain cannot be made. Currently the obstructive sleep apnea is less likely due to back knee and ankle pain.

Additionally, it was noted that the Veteran also reported that the joint pain has resulted in obesity due to lack of exercise. Causes of morbid obesity are multifactorial. Obesity is well known to cause sleep apnea; however, direct nexus between sleep apnea and the various causes for obesity cannot be made, concluding that his current sleep apnea is less likely due to musculoskeletal conditions.

He also has service-connected tinnitus. The examiner found although exact pathophysiology of tinnitus is not known, it may be caused by increased neural activity in the auditory brainstem, where the brain processes sounds, causing some auditory nerve cells to become over-excited. There is no documentation in the literature that tinnitus causes changes in the larynx and closure of the larynx o cause sleep apnea, concluding based on pathophysiology sleep apnea is less likely due to tinnitus.

A February 8, 2021, Letter from Physician Assistant, L.B, provided an etiology opinion for sleep apnea. The Veteran reported having symptoms towards the end of his duty as other service members indicated that the Veteran started snoring loudly in his sleep. His partner indicated in 2014 the Veteran experienced apneic episodes while sleeping. The physician indicated that the Veteran's weight gain most likely contributed to his sleep condition; however, his service-connected disabilities contributed to his weight gain. The Veteran indicated that pain from his ankle and back keep him from being able to exercise as it causes flare-ups. It was opined that it is at least as likely as not that the Veteran's sleep apnea is related to the service-connected chronic back and ankle pain. It was found that the Veteran's inability to properly exercise is the cause of his weight gain which likely instigated the development of his sleep apnea. It was reasoned that medical research is clear that diet alone is only an effective means for weight loss in the short term and without exercise it is ineffective for the long term. Additionally, evidence supports the prevalence of sleep apnea in patients who suffer from chronic pain. The physician also noted studies that concluded that BMI activity are associated with physical activity instead of caloric intake and there is an association between sleep apnea and chronic pain. 

In March 2021 the Veteran submitted an article that concluded that tinnitus
 that the Veteran's sleep apnea is related to the service-connected chronic back and ankle pain. It was found that the Veteran's inability to properly exercise is the cause of his weight gain which likely instigated the development of his sleep apnea. It was reasoned that medical research is clear that diet alone is only an effective means for weight loss in the short term and without exercise it is ineffective for the long term. Additionally, evidence supports the prevalence of sleep apnea in patients who suffer from chronic pain. The physician also noted studies that concluded that BMI activity are associated with physical activity instead of caloric intake and there is an association between sleep apnea and chronic pain. 

In March 2021 the Veteran submitted an article that concluded that tinnitus and sleep apnea are linked. Another article entitled "Pain and Sleep," concluded that two out of three people with chronic pain have trouble sleeping. The article indicated that people with pain experience sleep disturbances that are 80 percent worse than the general population. 

A June 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with obstructive sleep apnea. The examiner opined that the claimed condition is less likely as not related to service. For the rationale the examiner noted that a clinical note from June 2020 from Dr. Chechani at the Sleep Diagnostic Center documented that the Veteran "has had horrible sleep for the last 3 years. He has gained 100 pounds during that time," prompting the need to order a sleep study. It was further reasoned that:

From the documentation submitted by the Veteran, the Veteran first contended that his sleep apnea started in service by mentioning snoring in his lay statements, and more recent self-reported statements report his chronic pain with "the outcome of limitation of physical activity", "lack of sleep," "limited physical abilities caused by back, ankles, furthermore addressing depression and anxiety to include headaches," "all factors that have been linked to contributing to weight gain and all ailments associated to sleep apnea." A medical opinion written by a physician assistant Leah Bucholz who practices in the state of Texas, references many articles that discuss obesity and factors associated with obesity. However medical records specific to the veteran to specifically demonstrate a significant weight gain occurring directly from his service-connected conditions are not cited, since there are actually none such records available based on my review. There are very limited medical records post-service treatment after 2000. In particular, there are no specific treatment medical records from 2000 to July 2020 (when the sleep study was done) that support the veteran's perception of weight gain being directly caused by any of his service-connected conditions he mentions, and there are no weights to trend and graph over time during that 20 year period to substantiate further insight and make any reasonable connection. Since obesity is a condition that is multifactorial in origin, determining the exact root cause and etiology requires specific investigation into actual primary source medical records to corroborate one's subjective perception of the cause. Upon reviewing the evidence that is available, there is insufficient objective data to lend corroboration to the veteran's statements. 

It was further reasoned that:

The clinic note from the sleep specialist Dr. Chechani though, referenced above, did mention that he gained 100 pounds in the "last 3 years" before the sleep study was done- this indicates quite a dramatic recent increase in weight, however the underlying etiology of that significant weight gain in a short period of time is not objectively apparent due to limitation in objective data. 

Regarding direct service connection the examiner reasoned that the Veteran STRs were reviewed and there is no evidence in his STRs that would be diagnostic or indicative of OSA. His retirement examination showed that he checked "no" to "frequent trouble sleeping," and although snoring is retrospectively being reported by the veteran as having occurred in service, snoring is not specific to or a diagnostic of OSA, since snoring is also commonly present in individuals that do not have OSA.

A July 2021 private etiology opinion was completed by Dr. J.K., with the Singular Sleep business. It was opined that it is more likely than not that the Veteran's diagnosed obstructive sleep apnea is caused by or aggravated by his established service-connected lumbosacral strain with lumbar facet arthropathy. The doctor noted that the Veteran is diagnosed obese and obesity has been shown to be a causative factor of obstructive sleep apnea in distinguished medical research. It was reasoned that individuals with chronic pain often experience less deep sleep, more awakenings during the night, as well as less efficient sleep. Thus, the quality of sleep is often light and unrefreshing. Furthermore, this non-restorative sleep pattern can then cause diminished energy, depressed mood, fatigue, and worse pain during the day and the veteran has experienced
 business. It was opined that it is more likely than not that the Veteran's diagnosed obstructive sleep apnea is caused by or aggravated by his established service-connected lumbosacral strain with lumbar facet arthropathy. The doctor noted that the Veteran is diagnosed obese and obesity has been shown to be a causative factor of obstructive sleep apnea in distinguished medical research. It was reasoned that individuals with chronic pain often experience less deep sleep, more awakenings during the night, as well as less efficient sleep. Thus, the quality of sleep is often light and unrefreshing. Furthermore, this non-restorative sleep pattern can then cause diminished energy, depressed mood, fatigue, and worse pain during the day and the veteran has experienced all of the previous symptoms, limiting his ability to work out, which has led to weight gain.

Also, common research has found disabilities such as tinnitus, migraines, and psychiatric are causative factors in obstructive sleep apnea. The doctor indicated that right ankle sprain/strain has found to be a contributing factor to obstructive sleep apnea due to chronic pain. There is a high association between back pain and sleep problems and studies reveal that back pain interferes with getting to sleep and staying asleep through the night, and conversely, that lack of restorative sleep increases pain. Sleep disturbance shows an independent and linear correlation with pain severity, even after controlling for health measures and sleep habits. According to an article by Stefano Sinicropi, MD, back pain impairs sleep in a number of ways. These obstacles include increased awareness of the pain, medication for back pain may disrupt sleep, lack of exercise leads to sleep problems, and back pain makes it difficult to find a comfortable sleeping position. It was further noted that it's already been an extensively studied subject that body posture has a major effect on breathing abnormalities during sleep. 

The doctor noted that painful stimuli produce microarousals, which disrupt sleep continuity and alter normal sleep. Chronic pain is associated with increased high frequency EEG activity and a decrease in slow frequency EEG activity. One of the most effective remedies for sleep apnea, CPAP therapy, may also have the benefit of reducing sensitivity to pain. A recent study found consistent use of the CPAP could reduce pain sensitivity. As a result of these studies and the Veteran's diagnosed sleep apnea, it was concluded that the Veteran's obstructive sleep apnea is related to the chronic pain from his lumbar strain. 

The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is related to service.

"After careful consideration of the evidence, any reasonable doubt remaining, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  If the evidence is not in approximate balance or nearly equal, the claim is to be denied.  The United States Court of Appeals for the Federal Circuit clarified in Lynch v. McDonough that the proper standard of review is whether the factors are in an "approximate balance." Lynch v. McDonough, 999 F.3d 1391 (2021).  Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance or "nearly equal" and does not require the evidence to be in exact equipoise. Id

In this regard the Board finds that the Veteran has provided a February and July 2021, private opinion that presents an adequate rationale that is at least as persuasive as the January and June 2021 VA medical opinions to the contrary. The Veteran is service-connected for a lumbar strain disability which has been linked to the OSA. The private and VA opinions all acknowledge the Veteran's weight gain as a significant factor in the severe OSA diagnosis and the Veteran along with the private physicians have provided articles discussing studies where comorbidities with obesity, chronic pain, and sleep apnea are discovered. While this alone would be insufficient to meet the standard outlined in 38 C.F.R.§ 3.310, the Board notes that secondary service connection under 38 C.F.R. § 3.310(a) is warranted where a non-service-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 non-service-connected disability. Spicer v. McDonough, 61 F.4th 1360, 1364-66 (2023). Here, the July 2021 private doctor in part is arguing that individuals with chronic pain, such as the Veteran have more awakenings during the night resulting in less efficient sleep. That lack of efficient sleep leads to diminished energy, depressed mood, and fatigue, which
 connection under 38 C.F.R. § 3.310(a) is warranted where a non-service-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 non-service-connected disability. Spicer v. McDonough, 61 F.4th 1360, 1364-66 (2023). Here, the July 2021 private doctor in part is arguing that individuals with chronic pain, such as the Veteran have more awakenings during the night resulting in less efficient sleep. That lack of efficient sleep leads to diminished energy, depressed mood, and fatigue, which limits the Veteran's ability to exercise. The lack of exercise leads to weight gain which has led to severe obstructive sleep apnea.  

In light of the positive private opinions the Board resolves the benefit of the doubt in the Veteran's favor and finds the evidence is at least in equipoise as to whether his service-connected lumbar strain disability caused, or at the very least, contributed to his OSA disability.  In short, the Board concludes that the Veteran has a current OSA disability that is related to the service-connected lumbar strain. 38 U.S.C. §§ 1110, 1131, 5107(b).  Accordingly, service connection is warranted.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jackman, Bridget

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.