Decision A26040047

Citation Nr: A26040047
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210716-172996
DATE: April 29, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea is granted.

REMANDED

Entitlement to an initial compensable disability rating since November 9, 2021, for aortic dissection is remanded.

FINDING OF FACT

Probative evidence indicates the Veteran's service-connected disabilities led to his obesity, and that but-for his service-connected PTSD the Veteran would likely manage his OSA more successfully.

CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea have been met.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from October 1994 to March 1998. 

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

On his July 2021 VA Form 10182 (Notice of Disagreement), the Veteran elected the Hearing docket.  The Veteran and his spouse testified at a Board hearing in January 2025.

Therefore, the Board may only consider the evidence of record at the time of the April 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the January 2025 hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the April 2021 decision on appeal and prior to the January 2025 Board hearing, or (2) more than 90 days following the January 2025 hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

However, because the Board is remanding the claims of entitlement to a compensable initial rating for aortic dissection, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a).  

Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be established on a secondary basis for a disability which is caused or aggravated by a service-connected disability.? 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.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.310; Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms of a disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Although lay persons are considered competent to provide opinions on some simple medical issues, complex medical issues fall outside of the realm of common knowledge of a lay person.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38
 supporting the occurrence of lay-observable events or the presence of a disability or symptoms of a disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Although lay persons are considered competent to provide opinions on some simple medical issues, complex medical issues fall outside of the realm of common knowledge of a lay person.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C. § 7104(a).  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to service connection obstructive sleep apnea (OSA)

The Veteran contends his current obstructive sleep apnea disability is secondary to his service-connected posttraumatic stress disorder (PTSD) disability.  See September 2020 VA Form 20-0995 Supplemental Claim; see also January 2019 Statement in Support of Claim; January 2019 VA Form 526EZ Fully Developed Claim; May 2017 VA Form 526EZ Fully Developed Claim. 

The Board finds that service connection is warranted for obstructive sleep apnea on a secondary basis. 

In the April 2021 rating decision, the RO found that at the June 2020 VA medical examination showed a diagnosis of sleep apnea.  The Board is bound by this favorable finding absent a finding of clear and unmistakable error.  See 38 C.F.R. § 3.104(c).

Service connection compensation is now in effect for right ankle ligament repair with degenerative changes since March 4, 1998; for PTSD since January 18, 2018; for hypertension since November 9, 2020; and for aortic dissection since November 9, 2010. 

At the January 2025 Board hearing, the Veteran testified that he has difficulty using the CPAP (Continuous Positive Airway Pressure) machine for his OSA because he felt restricted and panicked.  The Veteran also testified that prior to his aortic dissection, he enjoyed physical activity but since the aortic dissection surgery he had been unable to move with any similar level of exertion and was having difficulty losing the weight he gained. See January 2025 Hearing Transcript.

In its role as a finder of fact, the Board finds that the Veteran is competent to report difficulties with using his OSA treatment mechanism, and the difficulties of maintaining an active lifestyle.  The Board finds his testimony credible.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In a private March 2025 medical opinion, Dr. R. P. reviewed the Veteran's claims file and noted the Veteran was unable to exercise or lead an active lifestyle because of his service-connected right ankle disability since 2007 which likely resulted in his current obesity.  The private examiner then noted medical literature and studies that obese adults are twice as likely to develop OSA as non-obese adults, and that veterans with PTSD are diagnosed with OSA at a higher rate than among the general population.  The examiner opined that given the medical discussions cited, the Veteran's OSA was at least as likely as not due to his service-connected PTSD disability or secondary to the weight gain caused by physical issues from his service-connected disabilities.  See March 2025 Medical Treatment Record - Non-Government Facility.

The Board finds this opinion highly probative.  The examiner reviewed the Veteran's claims file, cited to reputable medical research, and provided a reasoned rationale for his conclusions.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

The Federal Circuit held 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,
 issues from his service-connected disabilities.  See March 2025 Medical Treatment Record - Non-Government Facility.

The Board finds this opinion highly probative.  The examiner reviewed the Veteran's claims file, cited to reputable medical research, and provided a reasoned rationale for his conclusions.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

The Federal Circuit held 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.  Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).

Furthermore, the Court of Appeals for Veterans Claims (CAVC) held that obesity can be considered as an intermediate step between a service-connected condition and the cause or aggravation of a non-service-connected condition.  Walsh v. Wilkie, 32 Vet. App. 300 (2020).  

In light of the foregoing, the Board finds that all three elements of service connection on a secondary basis are established by the competent and credible lay and medical evidence of record.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  Probative evidence indicates that the Veteran's service-connected disabilities likely led to his obesity, and that but-for his service-connected PTSD, the Veteran would likely manage his OSA more successfully. 

The Board notes that several VA examiners opined the Veteran's OSA was not secondary to his service-connected disabilities.  See June 2020 C&P Exam; October 2020 C&P Exam; April 2021 C&P Exam.  However, the VA examiners did not apply the correct legal standard for their opinions on secondary service connection nor considered whether the Veteran's service-connected disabilities resulted in his obesity.  See Spicer v. McDonough, supra; Walsh v. Wilkie, supra. 

Here, because there is at least an approximate balance of evidence in favor of finding that service connection is warranted for the Veteran's OSA, the Board will grant the claim. 

Affording the Veteran the benefit of the doubt, the claim for service connection for OSA is warranted on a secondary basis.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

Entitlement to an initial compensable disability rating since November 9, 2021, for aortic dissection is remanded.

The Veteran contends he warrants a higher rating for his service-connected aortic dissection disability. As an initial matter, the Board finds there is conflicting medical evidence regarding the Veteran's aortic dissection disability.    

At the April 2021 VA medical examination for vascular diseases, the examiner evaluated the Veteran's aortic dissection disability within the framework of an aortic aneurysm rather than as a peripheral vascular disease or as arteriosclerosis obliterans. The examiner noted the Veteran currently had an aortic aneurysm that was not symptomatic but that precluded exertion.  See April 2021 C&P Exam.

The April 2021 rating decision awarded a noncompensable rating for the Veteran's aortic dissection based on a diagnosed disability with no compensable symptoms under diagnostic criteria (DC) 7114 for arteriosclerosis obliterans.  See April 2021 Rating Decision-Narrative.

After a review of the record, the Board determines that a remand is necessary to correct a pre-decisional duty to assist error. At the outset, it is unclear whether the Veteran's aortic dissection disability should be rated as an aortic aneurysm under DC 7110 rather than as arteriosclerosis obliterans under DC 7114 based on the medical evidence currently available. As noted above, the April 2021 VA examination report evaluated the Veteran's disability within the framework of an aortic aneurysm. However, the April 2021 VA medical examination report is not adequate to rate the Veteran due to the conflicting statement that the Veteran was not symptomatic but that the disability precluded exertion. As such, a new VA examination is warranted. 

The matter is REMANDED for the following action:

1. Obtain a VA examination to determine the severity and extent of the Veteran's disability.
ortic dissection disability should be rated as an aortic aneurysm under DC 7110 rather than as arteriosclerosis obliterans under DC 7114 based on the medical evidence currently available. As noted above, the April 2021 VA examination report evaluated the Veteran's disability within the framework of an aortic aneurysm. However, the April 2021 VA medical examination report is not adequate to rate the Veteran due to the conflicting statement that the Veteran was not symptomatic but that the disability precluded exertion. As such, a new VA examination is warranted. 

The matter is REMANDED for the following action:

1. Obtain a VA examination to determine the severity and extent of the Veteran's disability. 

* The examiner must reconcile the conflicting statements in the April 2021 VA examination report that the Veteran's aortic aneurysm is not symptomatic but precludes exertion. 

2. After the above development has been completed, readjudicate the Veteran's increased rating claim, with consideration of whether the Veteran's aortic dissection disability warrants evaluation as a peripheral vascular disease under DC 7114 or as an aortic aneurysm under DC 7110 based on the medical evidence of record.

 

 

S. Sorathia 

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Anwar, Attorney-Advisor

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.