SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran served on active duty from November 2001 to April 2002. This case concerns the veteran's appeal for service connection for obstructive sleep apnea (OSA), claimed as secondary to service-connected chronic renal disease (kidney disease stage III with hypertension). The veteran also raised a new theory at the Board hearing alleging OSA onset in service due to snoring and daytime fatigue, but this could not be considered due to AMA appeal rules. The Board reviewed evidence including a September 2020 private physician letter, November 2024 private physician indications, an October 2020 VA examination, and an April 2021 VA examination. The private physician's opinions were afforded no probative weight due to lack of rationale. The VA examiners opined that OSA was not caused by or aggravated by the service-connected hypertension, citing a lack of scientific basis for aggravation and noting that hypertension often aggravates OSA, not vice-versa. The Board found the VA opinions highly probative. The Board denied service connection for OSA, finding it not causally or etiologically related to service or aggravated by service-connected conditions, as the weight of the evidence was against the claim and the benefit of the doubt doctrine was inapplicable.

Rationale

Private physician opinions lacked rationale.; VA examiners opined no nexus between OSA and hypertension.; Weight of evidence against claim.

Full Decision Text

Citation Nr: A26027584
Decision Date: 03/26/26	Archive Date: 03/26/26

DOCKET NO. 210602-163495
DATE: March 26, 2026

ORDER

Service connection for obstructive sleep apnea (OSA) is denied.

FINDING OF FACT

OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, or caused or aggravated by service-connected chronic renal disease (kidney disease stage III with hypertension).

CONCLUSION OF LAW

The criteria for service connection for OSA have not been met.  38 U.S.C. §§ 1110, 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 November 2001 to April 2002.   This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2021 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA).  In June 2021, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 101820) and requested a Board hearing, which was held before the undersigned Veterans Law Judge in October 2024.  A transcript of the hearing is associated with the record.

Thus, the Board may only consider the evidence of record at the time of the May 2021 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, which includes such received in November 2024. 38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decisions 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, he 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.

The Board notes that, in the May 2021 rating decision, the AOJ found that new and relevant evidence had been received and readjudicated the Veteran's claim for service connection for OSA on the merits.  The Board is bound by favorable findings made by the AOJ in AMA appeals.  38 C.F.R. § 3.104(c).  Therefore, the Veteran's claim will be reviewed on a de novo basis. 

Entitlement to service connection for OSA, claimed as secondary to service-connected chronic renal disease (kidney disease stage III with hypertension).

In connection with his original claim for service connection for OSA received in September 2020, the Veteran advanced a very narrow theory of entitlement in that he only claimed that such disorder is secondary to his service-connected chronic renal disease (kidney disease stage III with hypertension). However, at his October 2024 Board hearing, he alleged, for the first time, that his OSA had its onset in service as evidenced by the presence of snoring and daytime fatigue, which continued to the present time. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Service connection may also be established on a secondary basis for
 granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability.  38 C.F.R. § 3.310(b); but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (holding all that is needed is a "but for" causation or aggravation to show entitlement to secondary service connection).

As an initial matter, in the May 2021 rating decision, the AOJ favorably found that Veteran had been diagnosed with OSA as demonstrated by a July 2020 sleep study and was service-connected for chronic renal disease (kidney disease stage III with hypertension).  The Board is bound by such favorable findings.  38 C.F.R. § 3.104(c).  

In support of his claim that his OSA is caused or aggravated by his service-connected hypertension, the Veteran submitted a letter in September 2020 from his private physician, Dr. K.R., in which he reported that he had been a patient of his for several years; had uncontrolled hypertension; and was recently diagnosed with OSA, which, in his opinion, had been contributing to his refractory, uncontrolled hypertension.  However, while Dr. K.R. provided an opinion regarding the relationship between the Veteran's service-connected chronic renal disease (kidney disease stage III with hypertension) and his OSA, such opinion focused on the opposite relationship, i.e., his OSA led to his hypertension, rather than whether the Veteran's hypertension caused or aggravated his OSA.  

Additionally, in November 2024, the Veteran's private physicians, Dr. B.H. and Dr. K.B., indicated that the Veteran was currently under their care for OSA, which was aggravated by his chronic kidney disease and hypertension.  However, as neither physician provided a rationale for their opinions, the Board affords such no probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). 

Conversely, an October 2020 VA examiner opined that the Veteran's OSA was not caused by or the result of his service-connected chronic renal disease (kidney disease stage III with hypertension).  In this regard, he indicated that a review of the medical literature did not reveal any direct or indirect cause and effect relationship between OSA and hypertension.  Additionally, an April 2021 VA examiner opined that the Veteran's OSA was not aggravated beyond its natural progression by his service-connected chronic renal disease (kidney disease stage III with hypertension).  In support thereof, he reported that there was no scientific basis to support aggravation of sleep apnea by hypertension in the Veteran.  The examiner further reported that hypertension did not aggravate sleep apnea, but the converse was often true (i.e., aggravation of hypertension by sleep apnea), which was consistent with Dr. K.R.'s opinion.  

The Board acknowledges that the April 2021 VA examiner's opinion also reflects the statement that the Veteran's claimed OSA, "which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression
 VA examiner opined that the Veteran's OSA was not aggravated beyond its natural progression by his service-connected chronic renal disease (kidney disease stage III with hypertension).  In support thereof, he reported that there was no scientific basis to support aggravation of sleep apnea by hypertension in the Veteran.  The examiner further reported that hypertension did not aggravate sleep apnea, but the converse was often true (i.e., aggravation of hypertension by sleep apnea), which was consistent with Dr. K.R.'s opinion.  

The Board acknowledges that the April 2021 VA examiner's opinion also reflects the statement that the Veteran's claimed OSA, "which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness." However, as clearly articulated in the preceding paragraph, the examiner's rationale as a whole is against the Veteran's claim that his OSA is aggravated by his service-connected chronic renal disease (kidney disease stage III with hypertension).  In this regard, the United States Court of Appeals for Veterans Claims has held that a VA opinion report is adequate if it is based on correct facts and sufficiently informs the Board of the medical expert's judgment on a medical question and the "essential rationale" for the opinion.  The report must be "read as a whole" and a medical examiner is not required to provide a detailed review of medical history or comment on every piece of favorable evidence in the record.  Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012).  In the instant case, the April 2021 VA examiner's opinion and rationale clearly states that the medical evidence does not support a finding that the Veteran's OSA was aggravated by his service-connected hypertension.  

The Board affords great probative weight to the October 2020 and April 2021 VA examiners' opinions as such considered all pertinent evidence of record, to include the Veteran's medical history and contentions, and relevant medical literature, and provided a complete rationale, relying and citing to the records reviewed.  Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  Nieves-Rodriguez, supra; Stefl, supra.  

In this regard, the Board notes that no opinion addressing whether the Veteran's OSA had its onset in service has been obtained. However, as such theory was not raised until his October 2024 Board hearing, i.e., subsequent to the rating decision on appeal, it cannot serve as a pre-decisional duty to assist error in the AOJ's failure to obtain such an opinion.  Thus, pursuant to the AMA, the Board may not remand for an opinion addressing such theory of entitlement.  Furthermore, the Veteran's service treatment records are negative for any relevant complaints, treatment, or diagnosis referable to OSA, such disability was diagnosed many years after service, and there is no competent medical opinion of record in support of such a theory of service connection.  

In this regard, the Board has considered the Veteran's assertions as to the etiology of his OSA; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  The etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements.  Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Accordingly, the Veteran's opinion as to the etiology of his OSA is not competent evidence and, consequently, is afforded no probative weight.

Therefore, the Board finds that OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, or caused or aggravated by service-connected chronic renal disease (kidney disease stage III with hypertension).  Thus, service connection for such disorder is not warranted. 

In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the weight of the probative evidence is against the Veteran's claim for service connection for OSA, such doctrine is not
 evidence as to more complex medical questions).  Accordingly, the Veteran's opinion as to the etiology of his OSA is not competent evidence and, consequently, is afforded no probative weight.

Therefore, the Board finds that OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, or caused or aggravated by service-connected chronic renal disease (kidney disease stage III with hypertension).  Thus, service connection for such disorder is not warranted. 

In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the weight of the probative evidence is against the Veteran's claim for service connection for OSA, such doctrine is not applicable in the instant appeal and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Koria B. Stanton, Associate Counsel

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.