SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

D. JOHNSON · 2026 · Case ID: A26037773

GRANTED

Summary

The Veteran served from March 2003 to July 2003. The Veteran appeals the denial of an initial compensable rating for sleep apnea, contending that the agency of original jurisdiction (AOJ) incorrectly found that his sleep apnea preexisted his service-connected disabilities and improperly deducted the pre-aggravation baseline. The Veteran argued that his sleep apnea developed after in-service knee and back injuries made exercise difficult, worsening his condition. The Board reviewed conflicting medical evidence regarding the relationship between the Veteran's service-connected disabilities and his sleep apnea. While some evidence suggested a link through weight gain and reduced activity, other VA examiners opined that the sleep apnea was primarily due to obesity unrelated to service. The Board noted the Federal Circuit's decision in Spicer v. McDonough, which clarified that secondary service connection is warranted if a nonservice-connected disability would have been less severe but for a service-connected disability, and that 38 C.F.R. § 3.310(b) is unlawful. Applying this precedent, the Board found that the current severity of the Veteran's sleep apnea, requiring a CPAP machine, met the criteria for a 50 percent rating under Diagnostic Code 6847. The Board granted an initial 50 percent rating for sleep apnea, finding that while the evidence demonstrated a connection through obesity, the direct link to service-connected disabilities was not definitively established to warrant a higher rating. The Board resolved reasonable doubt in the Veteran's favor for the 50 percent rating.

Rationale

Sleep apnea rated under DC 6847 for use of CPAP machine.; Spicer v. McDonough precedent applied to secondary service connection.; Board resolved reasonable doubt in Veteran's favor for 50% rating.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6847

Docket No.

210324-148875

Full Decision Text

Citation Nr: A26037773
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 210324-148875
DATE: April 22, 2026

ORDER

Entitlement to an initial 50 percent rating for sleep apnea is granted.

FINDING OF FACT

The Veteran's sleep apnea, diagnosed after onset of his service-connected disabilities, has required the use of a continuous airway pressure (CPAP) machine since it was first diagnosed; chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a required tracheostomy have not been shown.

CONCLUSION OF LAW

The criteria for an initial 50 percent rating for sleep apnea have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97 Diagnostic Code 6847.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 2003 to July 2003.

The rating decision on appeal was issued in September 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1).

Although the Veteran initially requested Higher-Level Review when submitting the October 2020 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. In March 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision.

In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on August 13, 2024. Therefore, the Board may only consider the evidence of record at the time of the March 2021 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 hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision 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, 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.

Entitlement to an initial 50 percent rating for sleep apnea is granted.

The Veteran seeks an initial compensable rating for his service-connected sleep apnea. In a September 2020 rating decision, the AOJ granted service connection for sleep apnea because his disability was aggravated by his service-connected disabilities. The AOJ assigned a noncompensable rating effective December 9, 2010. In the March 2021 rating decision on appeal, the AOJ continued the noncompensable rating.

The Veteran contends that the AOJ incorrectly found that his sleep apnea preexisted his service-connected disabilities. He contends he did not develop sleep apnea until after he injured his knees and back in-service and could not effectively exercise. Consequently, he contends his sleep apnea should have been granted under 38 C.F.R. § 3.310(a) and rated without consideration of 38 C.F.R. § 3.310(b). See, e.g., March 2021 VA Form 10182.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is the present level of disability that is the primary concern for increased rating cases. Francisco v. Brown, 7 Vet. App.
nea until after he injured his knees and back in-service and could not effectively exercise. Consequently, he contends his sleep apnea should have been granted under 38 C.F.R. § 3.310(a) and rated without consideration of 38 C.F.R. § 3.310(b). See, e.g., March 2021 VA Form 10182.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is the present level of disability that is the primary concern for increased rating cases. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested with symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999).

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, if a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The Veteran's sleep apnea is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6847. Under Diagnostic Code 6847, a 50 percent rating is warranted for sleep apnea requiring use of breathing assistance device such as a CPAP machine. A 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy.

Pursuant to 38 C.F.R. § 3.310(b), VA will not concede that a nonservice-connected disability was aggravated by a service-connected disability unless the baseline level of severity of the nonservice-connected disability is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. Therefore, when service connection has been awarded based on aggravation, the assigned rating reflects only the degree of disability over and above the baseline degree absent aggravation. Id.; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 4.22.

However, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that secondary service connection is warranted under the causation standard of section 38 U.S.C. § 1110 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. In the same case, the Federal Circuit also held that 38 C.F.R. § 3.310(b), the regulation that formed the basis of the grant of service connection in this case and would otherwise control the outcome here, is unlawful because it is inconsistent with 38 U.S.C. § 1110.

In this case, in September 2020, the AOJ awarded entitlement to service connection for sleep apnea based on permanent aggravation by the Veteran's service-connected knee and back disabilities. The AOJ determined that the baseline pre-aggravation evaluation of the Veteran's sleep apnea to be 50 percent based on the Veteran's use of a CPAP machine.

The AOJ also found the current severity of his sleep apnea to warrant a 50 percent rating based on use of a CPAP machine. Therefore, the AOJ subtracted the 50 percent rating for current severity from the 50 percent pre-aggravation rating, which resulted in a noncompensable rating.

A June 2019 correspondence from the Veteran's private doctor indicates that the Veteran has been service-connected for his knees since 2008 and a back strain since 2012. The private doctor indicated that these conditions have made it difficult for the Veteran to exercise, which complicates maintaining a healthy weight and worsens sleep apnea. The private doctor indicated that the Veteran's sleep apnea is at least as likely as not due to his weight gain.

The Veteran also underwent a May 2020 VA sleep apnea examination. The examiner diagnosed obstructive sleep apnea
the AOJ subtracted the 50 percent rating for current severity from the 50 percent pre-aggravation rating, which resulted in a noncompensable rating.

The Veteran also underwent a May 2020 VA sleep apnea examination. The examiner diagnosed obstructive sleep apnea. The examiner indicated that the Veteran does not require continuous medication for a sleep disorder condition but does require use of a breathing assistance device such as a CPAP machine. The examiner indicated that the Veteran has peristent daytime hypersomnolence.

The May 2020 VA examiner opined that the Veteran obstructive sleep apnea is at least as proximately due to or the result of the Veteran's service-connected conditions. However, the examiner only noted there is no medical evidence to suggest a direct correlation between the Veteran's obstructive sleep apnea and his bilateral knee and back disabilities.

A May 2020 VA medical opinion also indicates that the VA examiner could determine a baseline level of severity based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by his service-connected disabilities, which was described as sleeping well with a CPAP and functioning fairly well during the day. The examiner indicated that the current severity of the Veteran's sleep apnea is not greater than baseline. Finally, the examiner indicated that the Veteran's service-connected disabilities cause a reduction in activity due to pain, which decreases calorie loss and increases obesity.

An addendum opinion was obtained in September 2020. The VA examiner indicated that the Veteran's service-connected disabilities have no direct relationship with obstructive sleep apnea. The examiner explained that obstructive sleep apnea is caused by high BMI with large neck circumference, in most cases. The examiner indicated that weight gain is secondary to sedentary activity but mostly oral intake and overeating. The examiner further indicated that the Veteran's service-connected disabilities are not the primary risk for obstructive sleep apnea or weight gain; therefore, the examiner found they were not connected. Finally, the examiner indicated that the Veteran's high BMI and weight gain is secondary to sedentary activity but mostly oral intake and overeating.

A December 2020 VA treatment record indicates the Veteran is on a CPAP and uses it regularly.

A VA addendum opinion was obtained in December 2020. The examiner indicated that a baseline severity can be determined based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation. The examiner noted that an April 2008 sleep study shows moderate obstructive sleep apnea. The examiner found that the current severity of the Veteran's obstructive sleep apnea is not greater than baseline because a 2010 sleep study also shows moderate obstructive sleep apnea. The examiner noted that a sleep study is the only objective criteria to measure sleep apnea; therefore, there is no evidence of aggravation beyond natural progression.

A March 2021 VA examiner opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner noted that obesity is the most recognized and accepted risk factor for sleep apnea. The examiner explained that the 2008 sleep study shows moderate obstructive sleep apnea with a BMI of 30. The examiner indicated that the Veteran's BMI was 25 during active service. Therefore, the examiner found that weight gain/obesity after active duty likely resulted in sleep apnea. However, the examiner further found that gaining weight and becoming overweight or obese is the norm in America such that the Veteran's service-connected disabilities are pathophysiologically unrelated to obesity. The examiner indicated that they are only circumstantially related through a person's claim of not exercising because of their disabilities. Finally, the examiner indicated that it is less likely than not that the Veteran's obstructive sleep apnea is proximately due to his service-connected disabilities by pathway of obesity.

In August 2024, the Veteran testified before the Board. During the hearing, the Veteran reported using a CPAP since being diagnosed with obstructive sleep apnea in 2010. He denied ever having chronic respiratory failure.

Analysis

After a review of the evidentiary record, and resolving reasonable doubt in the Veteran favor, the Board finds that an initial 50 percent rating is warranted for the Veteran's obstructive sleep apnea.

First, the evidence clearly demonstrates that the Veteran's obstructive sleep apnea is the result of his
their disabilities. Finally, the examiner indicated that it is less likely than not that the Veteran's obstructive sleep apnea is proximately due to his service-connected disabilities by pathway of obesity.

Analysis

First, the evidence clearly demonstrates that the Veteran's obstructive sleep apnea is the result of his obesity. VA has determined that obesity can constitute an intermediate step in demonstrating service connection on a secondary basis for another condition. There is conflicting medical evidence, however, regarding whether his service-connected disabilities either caused or aggravated his obesity.

The Veteran's private doctor indicated in June 2019 that the service-connected back and knee conditions made it difficult for the Veteran to exercise, which complicated his ability to maintain a healthy weight, and worsened his sleep apnea due to weight gain. In a similar fashion, the May 2020 VA examiner opined that the Veteran's service-connected disabilities aggravated his OSA. He explained that the service-connected back and knee disabilities caused a reduction in physical activity due to pain, which decreased calorie loss and increased obesity.

The March 2021 VA examiner opined that weight gain and OSA are only circumstantially related through a person's claim of not exercising because of their disabilities. This examiner provided a negative nexus opinion.

Other VA examiners opined that the service-connected knee and back disabilities had not caused the Veteran to become obese, and thus those disabilities had not caused the obstructive sleep apnea.

Entitlement to service connection is not in dispute here. The AOJ granted service connection based on a finding that permanent aggravation of the sleep apnea due to service-connected disabilities was shown.

In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit held that secondary service connection is warranted under the causation standard of 38 U.S.C. § 1110 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. The Spicer Court held that 38 U.S.C. § 1110 allows for service connection of conditions that would have been less severe were it not for the service-connected disability, even if the worsening of the condition occurs due to the natural progression of that condition. Id. The Court also held that 38 C.F.R. § 3.310(b), which was the basis of the original service connection grant in this sleep apnea case, is inconsistent with 38 U.S.C. § 1110.

Spicer indicates that determining the baseline of a disability prior to aggravation is no longer relevant because proximate causation encompasses aggravation. See 38 C.F.R. § 3.310(a).

Under 38 C.F.R. § 3.310(a), the Board is not required to compare the current level of severity of the Veteran's sleep apnea to the baseline level of severity, in order to adequately address the degree of aggravation that is currently service-connected and compensable. See 38 C.F.R. § 3.310(b). Therefore, the Board will only consider the current level of severity for the Veteran's obstructive sleep apnea.

In this case, the evidence of record demonstrates that the Veteran's sleep apnea requires use of a CPAP machine. Therefore, the current level of severity meets the criteria for a 50 percent rating under Diagnostic Code 6847.

In reaching this conclusion, the Board finds that a rating in excess of 50 percent is not warranted. The evidence does not demonstrate chronic respiratory failure with carbon dioxide retention or cor pulmonal, nor is there indication of tracheostomy. Accordingly, there is no basis upon which to assign the maximum 100 percent rating for sleep apnea at any time during the appeal period.

The Board has considered the Veteran's statements as to the severity of his sleep apnea, as well as the Veteran's contention that the AOJ improperly deducted out the pre-aggravation baseline. However, regardless of these assertions, neither the lay nor medical evidence reflects that a rating in excess of the 50 percent rating assigned is warranted.

In conclusion, resolving any reasonable doubt in favor of the Veteran, the Board concludes that an initial disability rating of 50 percent, but no higher, for sleep apnea is warranted. See 38 U
al, nor is there indication of tracheostomy. Accordingly, there is no basis upon which to assign the maximum 100 percent rating for sleep apnea at any time during the appeal period.

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Accordingly, an initial 50 percent rating, and not higher, for obstructive sleep apnea is granted.

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Aoughsten, 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.

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