SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served in the United States Marine Corps from August 1981 to August 1985, appeals the denial of service connection for obstructive sleep apnea (OSA). The veteran's attorney initially claimed OSA began in 2021 and was due to time in service, later amending the claim to assert OSA is secondary to service-connected tinnitus. The veteran's service treatment records were silent regarding any sleep disorder complaints, diagnosis, or treatment. His enlistment and separation medical reports were normal, and he denied trouble sleeping. Post-service records indicated a March 2021 diagnosis of moderate OSA from a private physician. The Board found that the evidence did not establish an in-service disease or injury related to OSA. The Board also addressed the secondary claim, finding the private opinion submitted by the veteran's nurse practitioner, Maude Meulstee, to be of little probative value. While Ms. Meulstee opined a likely association between OSA and tinnitus, her reasoning was based on an incomplete and speculative interpretation of a meta-analysis, which noted the association was unclear and limited to severe OSA cases, whereas the veteran's diagnosis was moderate. The Board noted that this secondary theory was raised after the initial rating decision, precluding a duty to assist error remand. Ultimately, the Board found the evidence persuasively against the claim, denying service connection for OSA.

Rationale

Service treatment records silent for sleep disorder complaints, diagnosis, or treatment.; Diagnosis of moderate OSA occurred over 35 years after service.; Private opinion lacked probative value due to speculative reasoning and incomplete literature interpretation.

Full Decision Text

Citation Nr: A26038637
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 210817-182460
DATE: April 24, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) is denied.

FINDING OF FACT

The Veteran's current OSA did not have its inception in service, is not causally related to an in-service disease or injury, and is not caused or aggravated by a service-connected disability.  

CONCLUSION OF LAW

The criteria for entitlement to service connection for OSA have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303 3.304, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from August 1981 to August 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which, in pertinent part, denied service connection for OSA.

In August 2021, the Veteran, through his attorney Jan D. Dils, submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) on which Ms. Dils identified the June 2021 rating decision, the issue set forth above, and elected the Hearing docket.

In a letter dated October 9, 2024, the Board notified the Veteran and Ms. Dils that the hearing Ms. Dils requested on the Veteran's behalf had been scheduled for January 15, 2025.  In a letter received on December 19, 2024, however, Ms. Dils indicated that the Veteran wished to withdraw his hearing request.  

Therefore, the Board may only consider the evidence of record at the time of the June 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran, or his attorney, within 90 days following receipt of the December 19, 2024 withdrawal of the hearing request.  38 C.F.R. § 20.302(b).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(b), 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.  

The Board notes that on the August 2021 VA Form 10182, Ms. Dils also identified the issue of "depression/anxiety/insomnia."  Although the June 2021 rating decision on appeal denied service connection for anxiety, prior to the submission of the August 2021 VA Form 10182, Ms. Dils submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim in July 2021, seeking readjudication of the June 2021 rating decision denying service connection for anxiety.  As such, Ms. Dils' submission of the August 2021 VA Form 10182, as to the issue of service connection for anxiety, was an impermissible concurrent election because the July 2021 supplemental claim was pending before the AOJ.  Thus, the claim of entitlement to service connection for anxiety is not before the Board on this appeal. See 38 C.F.R. § 3.2500(b).  

1. Entitlement to service connection for OSA.  

On the May 2021 claim form, which was completed and submitted by Ms. Dils, she contended only that the Veteran's OSA began in 2021 and is due to his "time in service."  See May 2021 VA Form 21-526EZ.  Unfortunately, she failed to offer any other specific contention regarding the Veteran's theory of entitlement nor did she identify any evidence in support of the claim.  On the August 2021 VA Form 10182, she offered no argument.  Following withdrawal
 connection for anxiety is not before the Board on this appeal. See 38 C.F.R. § 3.2500(b).  

1. Entitlement to service connection for OSA.  

On the May 2021 claim form, which was completed and submitted by Ms. Dils, she contended only that the Veteran's OSA began in 2021 and is due to his "time in service."  See May 2021 VA Form 21-526EZ.  Unfortunately, she failed to offer any other specific contention regarding the Veteran's theory of entitlement nor did she identify any evidence in support of the claim.  On the August 2021 VA Form 10182, she offered no argument.  Following withdrawal of the Veteran's request for a Board hearing, Ms. Dils submitted written argument in which she contended that the Veteran's OSA is secondary to his service-connected tinnitus.  See March 2025 written arguments.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disability.  38 C.F.R. § 3.310.  The three element test for secondary service connection requires evidence of: (1) a current disability; (2) a separate disability already service-connected; and (3) a causal relationship, i.e., a nexus, establishing that the current disability is due to, or aggravated beyond its natural progression by, the service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran's service treatment records (STRs) are silent for any complaints, diagnosis, or treatment for any sleep disorder.  The Veteran's April 1981 enlistment Report of Medical History reflects his denial of frequent trouble sleeping.  An accompanying Report of Medical Examination reflects that the Veteran's physical examination was normal.  The Veteran's July 1985 separation Report of Medical History reflects his denial of frequent trouble sleeping.  An accompanying Report of Medical Examination reflects that the Veteran's physical examination was normal.  

The Veteran's post-service VA treatment records reflect that in March 2021, he reported to his primary care physician that he had just completed a sleep test with a private physician and was waiting for the results.  

In May 2021, Ms. Dils submitted a claim for VA compensation on behalf of the Veteran, seeking service connection for OSA.  See May 2021 VA Form 21-526EZ.  On June 7, 2021, VA sent a letter to the Veteran asking him to submit any medical evidence he may have to support his claim.  VA also advised the Veteran that if he was unable to obtain any doctor, hospital, or medical report, he could complete forms (which VA enclosed with the letter) authorizing VA to obtain the records on his behalf.  A copy of this letter was provided to Ms. Dils.  On June 15, 2021, the Veteran submitted a response, indicating that he had no other information or evidence to give VA to support his claim and that he wanted VA to decide his claim as soon as possible.  

As indicated above, in the June 2021 rating decision on appeal, the AOJ denied service connection for OSA, finding that the Veteran did not have a current OSA diagnosis.

Following withdrawal of the Veteran's request for a Board hearing, and within the allowable evidentiary window, Ms. Dils submitted written argument in which she contended that the Veteran's OSA is secondary to his service-connected tinnitus.  See March 2025 written arguments.  In support of this theory of entitlement, Ms. Dils submitted private treatment records reflecting that the Veteran had been diagnosed as having moderate OSA in March 2021, as well as a private opinion she solicited from Maude Meulstee, a nurse practitioner associated with Zeeland Consulting.  Ms. Meulstee claimed that she personally reviewed the Veteran's military service records and medical files and indicated at the top of her report that she was offering a "MEDICAL OPINION OSA 2nd to weight gain from SC issues."  In the body of her report, however, Ms. Me
 that the Veteran's OSA is secondary to his service-connected tinnitus.  See March 2025 written arguments.  In support of this theory of entitlement, Ms. Dils submitted private treatment records reflecting that the Veteran had been diagnosed as having moderate OSA in March 2021, as well as a private opinion she solicited from Maude Meulstee, a nurse practitioner associated with Zeeland Consulting.  Ms. Meulstee claimed that she personally reviewed the Veteran's military service records and medical files and indicated at the top of her report that she was offering a "MEDICAL OPINION OSA 2nd to weight gain from SC issues."  In the body of her report, however, Ms. Meulstee opined that it is at least as likely as not (50% or greater probability) that the Veteran's OSA is secondary to his service-connected tinnitus.  Citing an article entitled "Association Between Sleep Apnea and Tinnitus: A Meta-Analysis," Ms. Meulstee stated that "[a] growing body of evidence indicates a possible association between SA and tinnitus.  Both aging and chronic systemic inflammation have been identified as factors related to both conditions.  Moreover, elevated sympathetic activity, commonly observed in patients with tinnitus, has also been linked to SA."  She further stated, "[i]n other words, patients with tinnitus get irritated from the constant noise and ringing in the ears, which will lead to elevated sympathetic nervous system activity (the flight or fight system), which has been linked to OSA."  

Having considered the evidence of record, the Board finds that service connection for OSA is not warranted. 

With respect to the first element of a service connection claim, the evidence shows a current diagnosis of moderate OSA, as reflected in the March 2021 private treatment note.  

With respect to the second element of a service connection claim, an in-service disease or injury, the Veteran's STRs are silent for any complaints, findings, treatment, or diagnoses related to OSA, and the Veteran has not claimed that his OSA had its onset in service.  Moreover, the available post-service medical records reflect that he was first diagnosed with OSA in March 2021, over 35 years after his separation from active service.  Given this evidence, the Board finds that an in-service disease or injury has not been established.  

As discussed above, Ms. Dils has recently raised a new theory of entitlement; namely, that the Veteran's OSA is secondary to his service-connected tinnitus.  

The Board finds, however, that the private opinion of Ms. Meulstee, the only evidence of record addressing this theory of entitlement, fails to provide a basis upon which to grant the claim and is of little probative value.  Although Ms. Meulstee concluded that it is at least as likely as not that the Veteran's OSA is secondary to his service-connected tinnitus, her reasoning is based on an incorrect conclusion drawn from the cited medical literature.  As discussed above, Ms. Meulstee cited an article entitled "Association Between Sleep Apnea and Tinnitus: A Meta-Analysis," but omitted both the stated objective and conclusion of the authors.  The authors clarified that "it remains unclear whether sleep apnea is associated with tinnitus." See https://pubmed.ncbi.nlm.nih.gov/38321723/.  Ultimately, the authors concluded that "severe sleep apnea may be related to tinnitus in adults," indicating a possible, but speculative, association limited to severe cases of OSA.  Id.  As the record reflects, however, the Veteran is diagnosed as having moderate, not severe OSA, a fact not acknowledged by Ms. Meulstee.  

The Board notes that because this theory of entitlement and evidence were provided after the rating decision on appeal, remand for an examination to address this new theory of entitlement is not appropriate.  Under the AMA, a remand in this case would only be appropriate to correct a pre-decisional duty to assist error.  Here, the Veteran, through his attorney, first raised the issue of whether his OSA is related to his service-connected tinnitus in January 2025, which is after the June 2021 rating decision on appeal.  Thus, this new theory of entitlement cannot be the basis of a duty to assist error on the part of the AOJ.  Reviewing the evidence of record, the Board does not find that there was a pre-decisional duty to assist error, and, therefore, a remand for an examination or opinion is not warranted for this issue.  

Based on the foregoing, the Board finds that the evidence is not in approximate balance and is persuasively against the claim; thus, the benefit of the doubt rule is not applicable and the claim is denied.  
 the issue of whether his OSA is related to his service-connected tinnitus in January 2025, which is after the June 2021 rating decision on appeal.  Thus, this new theory of entitlement cannot be the basis of a duty to assist error on the part of the AOJ.  Reviewing the evidence of record, the Board does not find that there was a pre-decisional duty to assist error, and, therefore, a remand for an examination or opinion is not warranted for this issue.  

Based on the foregoing, the Board finds that the evidence is not in approximate balance and is persuasively against the claim; thus, the benefit of the doubt rule is not applicable and the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  

 

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Madison, Siobhan K.

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.