SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served honorably in the United States Air Force from July 1968 to July 1971, appeals the denial of service connection for sleep apnea and an increased rating for diabetes mellitus, type II. The Board found no basis for service connection for sleep apnea, either directly or secondarily. While the veteran claimed exposure to chemicals in service and secondary connection to his service-connected hypertension and diabetes, the VA examiners opined that sleep apnea is more likely due to physical causes like obesity and comorbidities, not service-related exposures or the other conditions. The Board gave probative weight to these VA opinions, noting the lack of positive medical nexus evidence supporting the claim and that the veteran's lay statements, while competent to describe symptoms, were not sufficient to establish medical etiology. For the increased rating claim for diabetes mellitus, the Board reviewed the criteria under Diagnostic Code 7913. The evidence showed the veteran's diabetes was managed with a restricted diet, oral hypoglycemic agents, and insulin injections, but it failed to demonstrate the required "regulation of activities" (avoidance of strenuous activities) needed for a rating higher than 20 percent under either the pre- or post-December 2017 regulations. Therefore, the Board denied both the sleep apnea claim and the increased rating for diabetes mellitus.

Rationale

No positive medical opinion linking sleep apnea to service.; VA examiners found sleep apnea more likely due to physical causes (obesity, comorbidities) than service.; Lay statements were not competent to establish medical etiology.

Full Decision Text

Citation Nr: A25091660
Decision Date: 10/23/25	Archive Date: 10/23/25

DOCKET NO. 250707-561256
DATE: October 23, 2025

ORDER

Service connection for sleep apnea is denied.

Entitlement to an increased rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction, is denied.

FINDINGS OF FACT

1. The probative evidence of record does not support finding the sleep apnea began in service or is otherwise associated to service, to include the conceded exposure.

2. The weight of the evidence is against a finding that the Veteran's sleep apnea was caused or aggravated by his service-connected diabetes mellitus type II with erectile dysfunction or service-connected hypertension.

3. The evidence persuasively weighs against finding that the Veteran's diabetes mellitus, type II required one or more daily injection(s) of insulin, restricted diet, and regulation of activities at any time during the period on appeal.

CONCLUSIONS OF LAW

1. The criteria for service connection for sleep apnea disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309.

2. The criteria for an increased rating in excess of 20 percent for diabetes mellitus, type II are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Air Force from July 1968 to July 1971. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

This matter is before the Board on appeal from rating decisions in July 2024, which denied an increased rating for diabetes mellitus, type II, and in November 2024 which denied service connection for sleep apnea, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 20.801.

The Veteran filed a VA Form 10182 in July 2025 in which he identified additional issues to appeal from an April 2024 rating decision (increased rating for PTSD) and a September 2023 rating decision (increased rating for hypertension). The decisions on those claims were issued more than one year prior to the filing of the July 2025 VA Form 10182, and the record does not otherwise contain an appealable decision on the issues in the preceding year. Accordingly, those issues are not on appeal. 

Service connection for sleep apnea.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

Generally, to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the persistent disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b).

The Veteran asserts his sleep apnea is due to exposure to chemicals in service as well as secondary to his service-connected hypertension and service-connected diabetes mellitus type II with erectile dysfunction.

Here, the AOJ in the November 2024 rating decision on appeal made favorable findings that
3d 1163, 1167 (Fed. Cir. 2004).

A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b).

The Veteran asserts his sleep apnea is due to exposure to chemicals in service as well as secondary to his service-connected hypertension and service-connected diabetes mellitus type II with erectile dysfunction.

Here, the AOJ in the November 2024 rating decision on appeal made favorable findings that the Veteran had a current disability. The Board notes that it is bound by the favorable findings made by the AOJ in the July 2024 rating decision. 38 C.F.R. § 3.104(c). Participation in a toxic exposure risk activity is also conceded. 

Thus, the question before the Board is whether a medical nexus exists between the Veteran's present sleep apnea disability and his military service or as secondary to his service connected hypertension and service-connected diabetes mellitus type II with erectile dysfunction.

In August 2024, the Veteran was afforded a VA Sleeping Conditions examination. During the examination, the Veteran reported that he's been using a CPAP for about 20 years and his condition has stayed the same since onset. His symptoms include trouble sleeping and tiredness. The VA examiner indicated that the Veteran's claimed sleep apnea is less likely than not caused by service after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic combined effect of all toxic exposure risk activities of the veteran. The VA examiner noted that the Veteran was an aircraft mechanic in Thailand with possible exposure. The VA examiner considered that Aircraft maintenance workers are often exposed to a range of hazardous chemicals, such as solvents, cleaning agents, and adhesives. Additionally, the VA examiner noted that the Veteran was also was in Vietnam with exposure to herbicide but that exposure does not lead to sleep apnea and that sleep apnea is "more likely due to physical causes such as obesity, former smoker, male, aging, and comorbidities such as diabetes and hypertension."

In June 2025, the Veteran was provided VA addendum medical opinions for secondary service connection, as the August 2024 VA examiner raised the possibility that the Veteran's sleep apnea was more likely due to diabetes and hypertension. The VA examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected hypertension. The VA examiner noted that "the current evidence is that untreated OSA leads to hypertension, not that hypertension causes sleep apnea." The VA examiner noted that the Veteran was diagnosed with sleep apnea in 2009 and has been using CPAP machine since that time. The VA examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected diabetes mellitus type II with erectile dysfunction. The VA examiner noted the following for the rationale: 

"the relationship between OSA and Diabetes Type II is bidirectional: sleep apnea can contribute to the development and progression of Diabetes Type II via intermittent hypoxemia and sleep fragmentation, while Diabetes Type II may increase the risk of sleep apnea through mechanisms such as neuropathy and altered ventilatory control. Both diabetes and sleep apnea are independent risk factors for erectile dysfunction. However, the presence of erectile dysfunction does not cause sleep apnea; rather, these conditions frequently overlap due to common risk factors, especially obesity and cardiovascular comorbidities. In summary, sleep apnea is not considered a direct consequence of diabetes mellitus type II with erectile dysfunction; instead, these conditions often coexist due to overlapping pathophysiology and risk factors."

The Board affords the August 2024 and June 2025 VA opinions probative weight as they are based on a review of the record, considered the Veteran's lay statements, exposure to chemicals during service and whether or not his sleep apnea was  proximately due to or the result of his service-connected hypertension or service-connected diabetes mellitus type II with erectile dysfunction. The Board notes that the Veteran hasn't specifically contended that his sleep apnea is secondary to his service-connected hypertension or service-connected diabetes mellitus type II with erectile dysfunction but acknowledges that it was raised by the August 2024 VA examiner and addressed by the June 2025 VA examiner. 

The claim is also denied on a direct service basis. The weight of the persuasive evidence is against finding that a medical nexus exists between the Veteran's sleep apnea and an in-service injury, event, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.
 proximately due to or the result of his service-connected hypertension or service-connected diabetes mellitus type II with erectile dysfunction. The Board notes that the Veteran hasn't specifically contended that his sleep apnea is secondary to his service-connected hypertension or service-connected diabetes mellitus type II with erectile dysfunction but acknowledges that it was raised by the August 2024 VA examiner and addressed by the June 2025 VA examiner. 

The claim is also denied on a direct service basis. The weight of the persuasive evidence is against finding that a medical nexus exists between the Veteran's sleep apnea and an in-service injury, event, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. There are no medical opinions of record which weigh in favor of the claim. Treatment records associated with the claims file do not show any nexus between a sleep apnea disability and active duty service. 

The Board has also considered the Veteran's lay opinions that his claimed sleep apnea disability is related to service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts or events that the lay witnesses observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).

In this case, the Board considers the potential relationship between the Veteran's sleep apnea disability and its connection to service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe the symptoms, such as sleeping trouble throughout the years, he is not competent to provide a nexus opinion. Accordingly, his lay opinion in this matter has little probative value. Notably there is no positive medical opinion in the record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not in and of itself, render the lay evidence not credible); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that a lengthy period of absence of medical complaints for conditions can be considered as one factor in resolving a claim).

There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and that he is sincere in his belief that he has a sleep apnea disability that he feels is related to service. However, the Board has carefully reviewed the record in depth and has been unable to identify a basis upon which service connection may be granted. Significantly, there is no conflicting medical evidence that states the Veteran's sleep apnea disability is related to service. As the weight of the persuasive evidence is against the claim, the benefit-of-the-doubt-doctrine is not for application to the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 

For these reasons, the claim for service connection for a sleep apnea disability is denied.

Entitlement to an increased rating in excess of 20 percent for diabetes mellitus, Type II.

The Veteran seeks an increased rating for diabetes mellitus. By way of history, the AOJ initially granted service connection for diabetes in a November 2015 rating decision and assigned a 20 percent rating effective June 30, 2015. Although the Veteran filed an appeal as to the assigned effective date from that rating decision, the Veteran did not appeal the assigned rating.  Significantly, the Veteran appealed the issue of service connection for erectile dysfunction. In September 2023, the Board remanded the issue of service connection for erectile dysfunction for an examination to determine the relationship, if any, between the erectile dysfunction and the service connected diabetes mellitus. In July 2024, the AOJ granted service connection for erectile dysfunction and rated it with the diabetes mellitus. The Veteran filed a timely form 10182 to the July 2024 rating decision. 

Throughout the appeal period, the Veteran's diabetes mellitus, type II
 rating effective June 30, 2015. Although the Veteran filed an appeal as to the assigned effective date from that rating decision, the Veteran did not appeal the assigned rating.  Significantly, the Veteran appealed the issue of service connection for erectile dysfunction. In September 2023, the Board remanded the issue of service connection for erectile dysfunction for an examination to determine the relationship, if any, between the erectile dysfunction and the service connected diabetes mellitus. In July 2024, the AOJ granted service connection for erectile dysfunction and rated it with the diabetes mellitus. The Veteran filed a timely form 10182 to the July 2024 rating decision. 

Throughout the appeal period, the Veteran's diabetes mellitus, type II, is rated under Diagnostic Code 7913, for diabetes mellitus. 38 C.F.R. § 4.119; Copeland v. McDonald, 27 Vet. App. 333 (2015). Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). The criteria for Diagnostic Code 7913 were amended effective December 10, 2017 primarily to require "one or more daily injection" of insulin for a 20-, 40- or 60-percent rating. See 82 Fed. Reg. 50802 (November 2, 2017). Prior to those amendments, the insulin-related criteria was simply "requiring insulin."

These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after December 10, 2017. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Under the version of Diagnostic Code 7913 in effect prior to December 10, 2017, as relevant in this case, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupation and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Under the criteria in effect from December 10, 2017, a 20 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a
 to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913 as well. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id., at 364.

Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1).

Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018).

The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007).

Turning to the evidence of record, none of the records reflect regulation of activities. During the November 2015 VA examination the Veteran's diabetes was noted to be managed by restricted diet and a prescribed oral hypoglycemic agent.  The examiner specifically noted there was no regulation of activities. He visited his doctor less than twice a month for ketoacidosis or hypoglycemia. He had no hospitalizations for ketoacidosis or hypoglycemia.

During a May 2022 examination the Veteran's diabetes was noted to be managed by restricted diet and a prescribed oral hypoglycemic agent.  The examiner specifically noted there was no regulation of activities. He visited his doctor less than twice a month for ketoacidosis or hypoglycemia. He had no hospitalizations for ketoacidosis or hypoglycemia.

A January 2024 VA examination indicated the Veteran was prescribed an oral hypoglycemic agent, required insulin of 1 injection per day and also took Ozempic once every 2 weeks. There was no regulation of activities. He visited his doctor less than twice a month for ketoacidosis or hypoglycemia. He had no hospitalizations for ketoacidosis or hypoglycemia.

At the time of the most recent March 2025 VA examination, the Veteran's diabetes mellitus, type II was treated with management by a restricted diet, prescription of oral hypoglycemic agent(s), and insulin required with more than one injection per day. He did not require regulation of activities as part of medical management of his diabetes mellitus, type II. He visited his diabetic care provider less than two times per month for episodes of ketoacidosis and hypoglycemia, and he had zero hospitalizations for episodes of ketoacidosis or hypoglycemic reactions over the past 12 months. Finally, the Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus, type II.

The foregoing establishes that the Veteran's diabetes mellitus, type II required only restricted diet, one or more daily injection(s) of insulin, and an oral glycemic agent during the period on appeal. His treatment records fail to show that his diabetes mellitus, type II has ever required regulation of activities. At no time have his physicians advised him to avoid strenuous occupational and recreational activities. Rather, his records in January 2025 shows that he "can move again" and is able to "tolerate walking and doing activities of daily living without being in excruciating pain." Thus, there is no medical evidence showing that the Veteran's diabetes mellitus, type II required the regulation of activities, as is required for a 40 percent rating under Diagnostic Code 7913
's diabetes mellitus, type II required only restricted diet, one or more daily injection(s) of insulin, and an oral glycemic agent during the period on appeal. His treatment records fail to show that his diabetes mellitus, type II has ever required regulation of activities. At no time have his physicians advised him to avoid strenuous occupational and recreational activities. Rather, his records in January 2025 shows that he "can move again" and is able to "tolerate walking and doing activities of daily living without being in excruciating pain." Thus, there is no medical evidence showing that the Veteran's diabetes mellitus, type II required the regulation of activities, as is required for a 40 percent rating under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913; see also Camacho, 21 Vet. App. at 364-65.

In rendering this decision, the Board recognizes the Veteran's assertions that his diabetes mellitus, type II, warrants a higher evaluation and these endorsements have been taken into consideration. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of his diabetes mellitus, type II, according to the rating criteria. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, as noted above, the Veteran has not reported that his diabetes mellitus required him to use insulin. Therefore, the Veteran's lay statements do not support the claim for an increased rating.

To warrant a 40 percent rating, under both the former and revised regulations for Diagnostic Code 7913, there must be prescription of insulin, restricted diet, and regulation of activities, and the Veteran does not meet all of these requirements. Moreover, all of these requirements must be met to warrant assigning this even higher rating given the successive nature of the rating criteria in Diagnostic Code 7913. That is to say, the evidence of record shows the Veteran's diabetes has not required the collective use of insulin, restrictive diet, and the regulation of activities at any time during the entire appeal period. Thus, a rating in excess of 20 percent is not warranted under the version of Diagnostic Code 7913 in effect prior to December 10, 2017 or under the revised version that took effect on December 10, 2017.

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Dourmashkin

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.