SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

I. CANNADAY · 2026 · Case ID: A26035733

MIXED

Summary

The veteran, who served from October 1992 to December 1995, appeals the denial of service connection for obstructive sleep apnea and seeks increased ratings for bilateral lower radiculopathy and entitlement to TDIU. The Board granted service connection for obstructive sleep apnea, finding it secondary to the service-connected foreign body in the right big toe. The Board found the VA examiner's opinion inadequate because it did not address whether the service-connected toe condition aggravated the veteran's obesity, a known risk factor for sleep apnea. A private medical opinion was found probative, stating it was at least as likely as not that the veteran's obesity was due to the service-connected foot condition, which in turn caused or aggravated his sleep apnea. The Board gave the veteran the benefit of the doubt and found service connection warranted. However, the claims for increased ratings for bilateral lower radiculopathy and TDIU were remanded. The remand is necessary because the VA failed to obtain relevant civilian records for the back condition and provided an inadequate examination regarding the radiculopathy, not clarifying the impact of medication. For the TDIU claim, the Board found it raised by the record but remanded due to the AOJ's failure to assist in development, requiring a new VA examination and a VA Form 21-8940 to be provided to the veteran.

Rationale

Service connection granted as secondary; Private opinion found probative; Benefit of the doubt applied

Special Benefit

TDIU

Docket No.

251001-591649

Full Decision Text

Citation Nr: A26035733
Decision Date: 04/16/26 Archive Date: 04/16/26

DOCKET NO. 251001-591649
DATE: April 16, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea is granted.

REMANDED

Entitlement to an initial increased rating for left lower radiculopathy, sciatic is remanded.

Entitlement to an initial increased rating for right lower radiculopathy, sciatic is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

FINDING OF FACT

The Veteran's obstructive sleep apnea is due to his service-connected foreign body, right big toe.

CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea, as secondary to service-connected foreign body, right big toe, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1992 to December 1995.

This matter comes before the Board of Veterans' Appeals (Board) from March 2025 and April 2025 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the October 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 March 2025 and April 2025 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

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

However, because the Board is remanding the radiculopathy and TDIU claims, 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).

Pursuant to Williams v. McDonough, 37 Vet. App. 305 (2024), to the extent any time remains for a docket switch relative to the April 2025 rating decision, the Board finds that the Veteran will not be prejudiced by the Board immediately issuing the decision herein, which constitutes a full grant of the benefits sought as it relates to that rating decision.

Although the Board regrets the additional delay, a remand is necessary on some issues to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).

Entitlement to service connection for obstructive sleep apnea

The Veteran contends that he is entitled to service connection for obstructive sleep apnea. See October 2025 VA Form 10182.

Service connection on a secondary basis requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability either (a) caused, or (b) aggravated, the nonservice-connected disability. 38 C.F.R. § 3.310; Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

The April 2025 rating decision made findings of an obstructive sleep apnea diagnosis and of the fact that the Veteran is service connected for foreign body, right big toe. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c).

Therefore, the only question is whether the Veteran's service-connected disability caused or aggravated his sleep apnea.

In February 2025, the AOJ sought medical opinions on the matter, asking the examiner if the
F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

Therefore, the only question is whether the Veteran's service-connected disability caused or aggravated his sleep apnea.

In February 2025, the AOJ sought medical opinions on the matter, asking the examiner if the Veteran's sleep apnea was due to/aggravated by his right big toe and asking whether obesity was an intermediate step between a service-connected disability and the Veteran's sleep apnea.

The February 2025 examiner stated that the Veteran's service-connected right big toe did not cause his sleep apnea because his risk factor of being overweight outweighs his right big toe for development of sleep apnea.

The February 2025 examiner then went on to state that obesity was not an intermediate step because the "Veteran was overweight prior to joining the service."

The Board finds these opinions inadequate because they do not address whether the Veteran's service-connected right big toe aggravated the Veteran's obesity. They also do not address with sufficient rationale whether the Veteran's obesity was a progression from being overweight prior to service.

There is a November 2024 private opinion that the Board finds highly probative. The private doctor stated that it is at least as likely as not that the Veteran's obesity is due to his service-connected right foot condition, and that the Veteran's obesity led to, caused, and/or aggravated his obstructive sleep apnea.

The November 2024 private doctor continued that the Veteran's service-connected condition can lead to pain, painful motion, sleep disturbances, diminished motivation, and/or "comfort" overeating, which can lead to diminished activity, which leads to and/or promotes weight gain and obesity. The private doctor said that the medical literature has documented that obesity is known to predispose patients to and directly cause obstructive sleep apnea.

The Board finds the November 2024 private doctor's opinion to be adequate in that the examiner relied upon the examiner's own expertise, knowledge, and training. Further, the examiner considered the medical history of the Veteran and medical literature.

The Board also notes that, in a December 2024 statement in support of claim, the Veteran said that when he entered service, he weighed 185 pounds and now weighs 220 pounds. The Board notes that the Veteran's July 1992 entrance examination notes a comparable weight of 179 pounds. The Veteran said that his foot condition prevents him from exercising and that the pain makes it difficult to fall asleep or stay asleep. See December 2024 statement in support of claim.

In giving the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected right big toe caused the Veteran to become obese, or at least aggravated his obesity, which led to his sleep apnea.

The Board notes that, in the October 2025 attorney brief attached to the VA Form 10182, the Veteran's attorney requests a specific rating and effective date related to the grant of service connection. However, as this decision has just now granted service connection, requests for a rating and effective date are premature; the AOJ will address those matters when it implements the grant of service connection.

Therefore, after resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to an initial increased rating for left lower radiculopathy, sciatic is remanded.

2. Entitlement to an initial increased rating for right lower radiculopathy, sciatic is remanded.

The Veteran contends that he is entitled to increased ratings for his bilateral lower radiculopathy. See October 2025 VA Form 10182.

The Board has considered the Veteran's attorney's arguments in the October 2025 attorney brief attached to the VA Form 10182. The attorney seeks a rating of at least 40 percent for the Veteran's bilateral radiculopathy.

At the outset, the Board notes that the December 23, 2024, VA back examination report indicates that the Veteran said there are relevant civilian records related to his back that are not in the file. As these records could be relevant to his related radiculopathy, it was a pre-decisional duty to assist error requiring remand, for the AOJ not to obtain these records.

The Board notes
radiculopathy. See October 2025 VA Form 10182.

The Board notes that several December 2024 statements in support of claim address the various pain medications that the Veteran takes for various conditions. The December 23, 2024, VA back examination notes the use of Ibuprofen and prednisone.

The Board finds the December 23, 2024, VA back examination, which addresses the Veteran's radiculopathy, inadequate in that it is not clear whether the examiner discounted the ameliorative effects of the Veteran's medication when evaluating his radiculopathy. See Jones v. Shinseki, 26 Vet. App. 56 (2012). DC 8520 does not contemplate the ameliorative effects of medication.

It was a pre-decisional duty to assist error requiring remand, for the AOJ to rely upon an inadequate examination.

3. Entitlement to a TDIU is remanded.

The December 23, 2024, VA back examination indicates that the Veteran's back issues result in difficulty walking or standing. In December 2024 statements in support of claim related to his bilateral radiculopathy, the Veteran says that he finds it difficult to perform activities such as prolonged sitting, standing, and walking due to the pain.

In a December 2024 statement in support of claim related to his back, the Veteran said that he missed work due to his back pain. The Board liberally interprets that to raise the issue of TDIU as it relates to his back-related radiculopathy. Therefore, in giving the Veteran the benefit of the doubt, the Board finds that TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447.

However, before the Board can address the merits of the TDIU claim, additional development of the evidence is required to cure a pre-decisional duty to assist error. In this regard, despite the fact that the issue of a TDIU was raised by the record before the March 2025 rating decision, the AOJ did not assist the Veteran in the development of his claim. Therefore, the TDIU claim must be remanded.

The matters are REMANDED for the following action:

1. Attempt to obtain the civilian/private records referenced in the December 23, 2024, VA back examination.

2. After the above is complete, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral lower extremity radiculopathy disabilities. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated tests and studies should be completed, and the examination should reflect a full description of the Veteran's disabilities.

The examiner should provide a full description of the current severity of the Veteran's bilateral lower extremity radiculopathy disabilities, and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria.

The VA examiner is asked to provide a retrospective opinion concerning the severity of the Veteran's bilateral lower extremity radiculopathy disabilities at the December 23, 2021, VA back examination.

The examiner must keep the following in mind:

The examiner must report on the symptoms as they are without the ameliorative effects of medication and note that this was done.

As noted above, the examiner must review the claims file (including this remand) and note that such review was conducted. The examiner should review all medical evidence and all lay evidence.

A rationale should be provided for all opinions offered. The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record. The VA clinician is advised that medical opinions must contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two.

If an opinion cannot be expressed without resort to speculation, the VA clinician must so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

3. Provide the Veteran with appropriate notice regarding the TDIU
was conducted. The examiner should review all medical evidence and all lay evidence.

3. Provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete a VA Form 21-8940. Explain what is needed to establish entitlement to a TDIU. Ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on his work history, salary, and educational history. Complete any development and adjudication warranted by the Veteran's response.

I. Cannaday

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Veljic, Erica A.

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.

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