SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, a Marine Corps Veteran who served from August 1975 to December 1979, including service at Camp Lejeune, appealed the denial of service connection for obstructive sleep apnea and several other conditions. The Veteran also sought an increased rating for lumbosacral strain and a compensable rating for a right hand/finger injury. During a September 2024 hearing, the Veteran explicitly withdrew appeals for arthritis of the cervical spine, left and right shoulders, left and right wrists, left and right hips, left and right knees, left and right feet, a right hand/finger injury status post-injury, and an increased rating for lumbosacral strain. The Board dismissed these withdrawn appeals. The primary issue addressed was the claim for obstructive sleep apnea, which the Veteran contended was secondary to his service-connected back and right ankle disabilities, with obesity as an intermediate step. The Veteran's service treatment records were negative for sleep apnea. However, a November 2024 private medical opinion found it was at least as likely as not that the Veteran's weight gain and obesity, stemming from his service-connected back and ankle conditions, caused his obstructive sleep apnea. The Board found this private opinion to be of significant probative value, noting no contrary VA opinion. Consequently, the Board granted service connection for obstructive sleep apnea on a secondary basis.

Rationale

Private medical opinion found sleep apnea at least as likely as not due to weight gain from service-connected back and ankle conditions.; Weight gain and obesity were identified as risk factors for sleep apnea.; No contrary VA medical opinion was present.

Full Decision Text

Citation Nr: A26038141
Decision Date: 04/23/26	Archive Date: 04/23/26

DOCKET NO. 200922-111795
DATE: April 23, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea is granted.

The appeal for service connection for arthritis of the cervical spine has been dismissed.

The appeal for service connection for left shoulder arthritis has been dismissed.

The appeal for service connection for right shoulder arthritis has been dismissed.

The appeal for service connection for left hand/fingers arthritis has been dismissed.

The appeal for service connection for left wrist arthritis has been dismissed.

The appeal for service connection for right wrist arthritis has been dismissed.

The appeal for service connection for left hip arthritis has been dismissed.

The appeal for service connection for right hip arthritis has been dismissed.

The appeal for service connection for left knee arthritis has been dismissed.

The appeal for service connection for right knee arthritis has been dismissed.

The appeal for service connection for left foot arthritis has been dismissed.

The appeal for service connection for right foot arthritis has been dismissed.

The appeal for a compensable rating for service-connected status post right hand/finger injury has been dismissed.

The appeal for a rating in excess of 10 percent for service-connected lumbosacral strain of the thoracolumbar spine, arthritis of all joints has been dismissed.

FINDINGS OF FACT

1. The record reflects a diagnosis of obstructive sleep apnea; the sleep apnea was caused by weight gain associated with the service-connected lumbosacral strain of the thoracolumbar spine, arthritis of all joints and right ankle disabilities.

2. At a September 2024 hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, notified the Board that he wished to withdraw the appeal for service connection for the following disabilities: arthritis of the cervical spine, left shoulder arthritis, right shoulder arthritis, left hand/fingers arthritis, left wrist arthritis, right wrist arthritis, left hip arthritis, right hip arthritis, left knee arthritis, right knee arthritis, left foot arthritis, right foot arthritis, as well as the appeals for an increased rating for status post right hand/finger injury and lumbosacral strain of the thoracolumbar spine, arthritis of all joints.

CONCLUSIONS OF LAW

1. The criteria for service connection for obstructive sleep apnea have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

2. The criteria for withdrawal of the appeal for service connection for arthritis of the cervical spine by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for withdrawal of the appeal for service connection for left shoulder arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. The criteria for withdrawal of the appeal for service connection for right shoulder arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

5. The criteria for withdrawal of the appeal for service connection for left hand/fingers arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

6. The criteria for withdrawal of the appeal for service connection for left wrist arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

7. The criteria for withdrawal of the appeal for service connection for right wrist arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

8. The criteria for withdrawal of the appeal for service connection for left hip arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

9. The criteria for withdrawal of the appeal for service connection for right hip arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

10. The criteria for withdrawal of the appeal for service connection for left knee arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

11. The criteria for withdrawal of the appeal for service connection for right knee arthritis by the appellant have been met.  38 U.S.C. § 7105
38 U.S.C. § 7105; 38 C.F.R. § 20.205.

9. The criteria for withdrawal of the appeal for service connection for right hip arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

10. The criteria for withdrawal of the appeal for service connection for left knee arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

11. The criteria for withdrawal of the appeal for service connection for right knee arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

12. The criteria for withdrawal of the appeal for service connection for left foot arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

13. The criteria for withdrawal of the appeal for service connection for right foot arthritis by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

14. The criteria for withdrawal of the appeal for a compensable rating for service-connected status post right hand/finger injury by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

15. The criteria for withdrawal of the appeal for a rating in excess of 10 percent for service-connected lumbosacral strain of the thoracolumbar spine, arthritis of all joints by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from August 1975 to December 1979, including service at Camp Lejeune. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

In the September 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. In September 2024, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file.

Therefore, the Board may only consider the evidence of record at the time of the April 2020 agency of original jurisdiction (AOJ) decision, as well as any evidence submitted by the Veteran or 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, 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.

Entitlement to service connection for obstructive sleep apnea.

Service connection can 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 all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires competent evidence (1) of a current disability; (2) of an in-service incurrence or aggravation of a disease or injury; and (3) of a nexus between the claimed in-service disease or injury and the current disability.

Service connection may be granted for a disorder that is proximately due to or the result of a service-connected disability. An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability will be service-connected. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In order to establish a service-connected disability proximately caused or aggravated a current disability through obesity, the adjudicator must determine: (1) whether the service-connected disability caused the veteran to become obese or aggravated the obesity; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused or aggravated by
 in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability will be service-connected. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In order to establish a service-connected disability proximately caused or aggravated a current disability through obesity, the adjudicator must determine: (1) whether the service-connected disability caused the veteran to become obese or aggravated the obesity; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused or aggravated by the service-connected disability. If all the above questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. 

The Veteran appeals generally for service connection for obstructive sleep apnea, which he contends is secondary to his service-connected back and right ankle disabilities with obesity as an intermediate step. See September 2020 Notice of Disagreement.  

Here, the evidence shows that the Veteran was diagnosed with obstructive sleep apnea. See, e.g., February 2015 VAMC treatment record. The record shows that the Veteran is service-connected for lumbosacral strain of the thoracolumbar spine, arthritis of all joints and right ankle disability. 

The Veteran's STRs are negative for any complaints, treatment, or diagnosis referable to sleep apnea. His post-service treatment records reflect complaints of issues regarding sleeping due to joint pain in his ankles as early as 2001. See Medical Treatment Record - Government Facility. Post-service treatment records also note the need for an evaluation of sleep apnea as an etiology to the Veteran's snoring and crowded posterior oral pharynx in January 2014. 

The Veteran provided a private opinion in November 2024 wherein the examiner opined that it was at least as likely as not that the weight gain and obesity was due to and/or related to the service-connected lumbosacral strain of the thoracolumbar spine, arthritis of all joints and right ankle disabilities. In support of this opinion, the examiner identified medical literature that indicated sleep apnea risk factors in more than 60 percent of cases include obesity, narrowed airway, chronic nasal congestion, use of central nervous system depressant medications, older age, male gender, and smoking. The examiner identified the Veteran's symptoms related to the service-connected lumbosacral strain of the thoracolumbar spine, arthritis of all joints and right ankle disabilities, including swelling, spasms, and pain. The examiner noted the Veteran occasionally uses a brace and functional impact was noted as, "difficulty with prolonged walking and standing." The Veteran's service connected conditions limit his ability to exercise and lead an active lifestyle. Due to which he put on excess body weight. His BMI was recorded to be about 35.1 in 2020, which is morbidly obese. The examiner concluded that the Veteran's obstructive sleep apnea is at least as likely as not due to weight gain caused by the service-connected lumbosacral strain of the thoracolumbar spine, arthritis of all joints and right ankle disabilities. The examiner relied upon an accurate history and medical expertise and training, reviewed relevant medical literature, and provided a sound rationale for the medical opinion. Therefore, the November 2024 private medical opinion is of significant probative value. Notably, there is no VA medical opinion to the contrary.

Accordingly, the Board finds that a nexus exists between the Veteran's sleep apnea and his service-connected back and right ankle disabilities, with obesity as an intermediate step. Thus, entitlement to service connection for sleep apnea on a secondary basis to his service-connected back and right ankle disabilities with obesity as an intermediate step is warranted.

WITHDRAWAL OF APPEAL

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative. Id.  

Here, and specifically at the September 3, 2024 virtual hearing before the undersigned VLJ, the Veteran explicitly and unambiguously, and with a full understanding of the consequences, withdrew his appeals for service connection for: (1) arthritis of the cervical spine, (2) left shoulder arthritis, (3) right shoulder arthritis, (4) left hand/fingers arthritis, (5) left wrist arthritis, (6) right wrist arthritis, (7) left hip arthritis, (
 issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative. Id.  

Here, and specifically at the September 3, 2024 virtual hearing before the undersigned VLJ, the Veteran explicitly and unambiguously, and with a full understanding of the consequences, withdrew his appeals for service connection for: (1) arthritis of the cervical spine, (2) left shoulder arthritis, (3) right shoulder arthritis, (4) left hand/fingers arthritis, (5) left wrist arthritis, (6) right wrist arthritis, (7) left hip arthritis, (8) right hip arthritis, (9) left knee arthritis, (10) right knee arthritis, (11) left foot arthritis, (12) right foot arthritis, and (13) for a compensable rating for service-connected status post right hand/finger injury, and (14) for a rating in excess of 10 percent for service-connected lumbosacral strain of the thoracolumbar spine, arthritis of all joints. As he has withdrawn these appeals, there remains no allegations of errors of fact or law for appellate consideration with regard to these appeals. Thus, the Board does not have jurisdiction to review these appeals, and they are dismissed.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fields, Ashley N.

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.