SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, who served from September 11, 1975, to November 17, 1988, and again from March 15, 2003, to February 5, 2004, appeals the denial of service connection for sleep apnea. The Veteran had previously been denied service connection for sleep apnea in July 2019, with the claim becoming final after a subsequent denial to reopen in November 2019. The Veteran filed a supplemental claim in February 2021, which was also denied. The Board found that new and relevant evidence was submitted, including a nexus letter from a Family Nurse Practitioner and a legal brief raising a secondary service connection theory based on the Veteran's service-connected unspecified depressive disorder. The Board considered the Veteran's in-service complaints of trouble sleeping, insomnia, and upper respiratory infections, along with lay statements from his spouse and a fellow service member corroborating snoring and loud sleeping noises. The Board also noted that sleep apnea typically progresses over time and does not spontaneously appear. While a VA examiner in June 2019 issued a negative opinion based on the lack of in-service diagnosis, the Board found this insufficient grounds for denial, citing Ledford v. Derwinski. The Board found an approximate balance of evidence, resolving doubt in the Veteran's favor, and granted service connection for sleep apnea on a direct basis.

Rationale

New and relevant evidence submitted (Nexus letter, attorney brief raising secondary theory); In-service symptoms of snoring, fatigue, insomnia, and upper respiratory infections noted; Lay statements from spouse and fellow service member corroborate snoring/loud sleeping; Medical principle that sleep apnea progresses over time, not spontaneous onset; Proximity of post-service treatment for sleep apnea; Benefit of the doubt applied due to approximate balance of evidence

Full Decision Text

Citation Nr: A26038654
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 211021-192671
DATE: April 24, 2026

ISSUES

Whether new and relevant evidence has been received to readjudicate the claim for service connection for sleep apnea.

Entitlement to service connection for sleep apnea.

ORDER

As new and relevant evidence sufficient to readjudicate the previously denied claim of entitlement to service connection for sleep apnea has been received, the application to readjudicate the claim is granted.

Entitlement to service connection for sleep apnea is granted, subject to the laws and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1. Evidence has been received since the November 2019 rating decision that is new and relevant to the issue of service connection sleep apnea.

2. Resolving doubt in favor of the Veteran, his sleep apnea had onset during service. 

CONCLUSION OF LAW

1. New and relevant evidence has been received and the criteria for readjudication of the previously denied claim for service connection for sleep apnea are met.  38 U.S.C. §§ 101(35), 5108; 38 C.F.R. §§ 3.156(d), 3.2501.

2. The criteria for entitlement to service connection for sleep apnea have been met or approximated. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 11, 1975 to November 17, 1988 and from March 15, 2003 to February 5, 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2021 by a Department of Veterans Affairs (VA) Regional Office.

In the October 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On April 30, 2025, the Veteran withdrew the hearing request, cancelling the hearing scheduled for May 23, 2025, and requested 90 days from the cancelled hearing date to submit evidence.

Therefore, the Board may only consider the evidence of record at the time of the February 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days of the cancelled hearing on April 29, 2025. 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 from the cancelled hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. 

Favorable finding: the Veteran has been diagnosed with sleep apnea. 

New and Relevant Evidence

Generally, the claimant has one year from notification of an AOJ decision to initiate an appeal by filing an NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  See 38 U.S.C. §§ 7104(b), 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a).  However, if new and relevant evidence is presented or secured with respect to a claim, which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  See 38 U.S.C. § 5108.

The Board must consider the provisions of the Appeals Modernization Act (AMA). This law creates a new framework for Veterans to seek review on their claim when they are dissatisfied with VA's decision.  Under the revised law, a previously denied and final claim may be reopened on VA's receipt of new and relevant evidence.  New evidence is evidence not previously part of the actual record before agency adjudicators.  

Relevant evidence is information that tends to prove or disprove a matter at issue in a claim and is a lower standard for reopening claims.  Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.  38 C.F.R. § 3.2501(a)(1).

Whether new and relevant evidence has been received to readjudicate the claim for service connection for sleep apnea.

In a
 a new framework for Veterans to seek review on their claim when they are dissatisfied with VA's decision.  Under the revised law, a previously denied and final claim may be reopened on VA's receipt of new and relevant evidence.  New evidence is evidence not previously part of the actual record before agency adjudicators.  

Relevant evidence is information that tends to prove or disprove a matter at issue in a claim and is a lower standard for reopening claims.  Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.  38 C.F.R. § 3.2501(a)(1).

Whether new and relevant evidence has been received to readjudicate the claim for service connection for sleep apnea.

In a July 24, 2019 rating decision, the Veteran was denied service connection for sleep apnea.  The RO determined that the Veteran's sleep apnea was not related to service based on the findings and conclusions of a VA examiner.  In a November 7, 2019 rating decision, the RO denied reopening the claim, finding that the evidence from South Georgia Medical Associates, E.G.G., M.D. and service treatment records submitted in connection with his claim did not constitute new and relevant evidence because it was previously submitted and considered in the rating decision of July 22, 2019. The Veteran did not appeal the November 7, 2019, rating decision and thus became final. See 38 C.F.R. § 3.160. (38 CFR 3.2501)

On February 12, 2021, the Veteran filed a supplemental claim seeking service connection for sleep apnea. 

In the February 2021 rating decision on appeal, the AOJ found that the evidence submitted was not new and relevant and, therefore, the claims remained denied.  

Evidentiary window: As the Veteran elected the Hearing Docket, which was cancelled by the Veteran representative on April 30, 2025, in the determination on whether new and relevant evidence has been received since the last final rating decision, the Board can also consider evidence submitted within 90 days of the date in which the Veteran's hearing was cancelled.  This evidentiary window closed on July 29, 2025.

The Board observes that after the November 2019 rating decision and prior to issuance of the February 2021 rating decision on appeal the Veteran submitted a Nexus letter from a Family Nurse Practitioner on behalf of the Veteran's pulmonary physician, linking the Veteran's sleep apnea to service. During the applicable evidentiary window, the Veteran's representative/attorney submitted a brief highlighting arguments in support of the Veteran's claim (namely considering the Veteran's lay statement regarding continuity of symptomology), as well as introducing a secondary service connection theory of entitlement based on the Veteran's service-connected unspecified depressive disorder.  See June 4, 2025, VA Form 20-102018, Document/Evidence Submission.

The Board finds that the Nexus letter and the attorney brief raising a new theory of entitlement based on the Veteran's service-connected unspecified depressive disorder constitutes new evidence as this evidence was not previously part of the record.  38 C.F.R. § 3.2501(a)(1).   Moreover, the Nexus letter, combined with the legal brief raising a secondary service connection theory of entitlement are relevant because they tend to prove or disprove matters in issue, namely whether there is competent and credible evidence linking the Veteran's sleep apnea to military service or in the alternative, a service-connected disability.

Accordingly, the Board finds the evidence received since the prior final denial   both new and relevant to the Veteran's service connection claims for sleep apnea.  Therefore, readjudication of the claims is warranted.    

Entitlement to service connection for sleep apnea.

The Veteran claims entitlement to service connection for sleep apnea. He contends that his sleep apnea began in and is directly related to his active duty service, or caused by or aggravated by his service-connected unspecified depressive disorder. See June 4, 2025, VA Form 20-102018, Document/Evidence Submission.

Service Connection

In order to obtain service connection under 38 U.S.C. § 1131 and 38 C.F.R. § 3.303(a) a Veteran must satisfy a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed.
 order to obtain service connection under 38 U.S.C. § 1131 and 38 C.F.R. § 3.303(a) a Veteran must satisfy a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013).

Additionally, secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balance, i.e., "nearly equal," but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Discussion and Analysis

As an initial matter, the Veteran has been diagnosed with obstructive sleep apnea and has been prescribed a continuous positive airway pressure (CPAP) machine to manage his disability since 2004. See May 2019, VA Sleep Apnea examination. As such, the first element of service connection has been met. Additionally, he is service-connected for unspecified expressive disorder, 30 percent from November 21, 2012, and 50 percent disabling from June 26, 2021.

The question before the Board, then, is whether the Veteran's diagnosed sleep apnea is related directly to active service or caused by or aggravated by his service-unspecified depressive disorder.

On his January1988, Report of Medical History for purposes of separation during his first period of active duty, the Veteran reported frequent trouble sleeping. The clinical provider also noted that the Veteran has had insomnia lately. In a January 20, 2004, post deployment health assessment during his second period of active duty, the Veteran reported that he still felt tired after sleeping.  Additionally, multiple service treatment records during his first period of active duty (November 1981, December 1981 and March 1982) note that the Veteran was treated for upper respiratory infections.

The Veteran's spouse submitted a notarized statement reporting that she had been married to the Veteran since his first period of active duty in 1981 and that she has witnessed him snoring very loudly and that it has become increasingly worse over time. In July 2015, a fellow service member stated that he shared a tent with the Veteran during one of his annual trainings and that the Veteran made loud sounds while he was sleeping, so much so that he could not sleep in the same tent.  The Board observes that the Veteran's service treatment records and lay statement from the Veteran's spouse, corroborate the Veteran's in-service symptoms of snoring loudly, day-time fatigue, and insomnia.

Post service, October 2004, December 2005, April 2006 and June 2006 Medical records from South Georgia Pulmonary, Critical Care and Sleep Medicine note the Veteran's treatment for obstructive sleep apnea. These medical records indicate the use of nasal continuous positive airway pressure (CPAP) since October 2004.  A January 4, 2006, Sleep study confirms a diagnosis of hypersomnia with sleep apnea.

In an August 17, 2016, the Veteran submitted a nexus letter from his physician who stated that it is true that the Veteran was diagnosed for OSA after discharge; however, the physician stated that in reviewing his medical records, the Veteran was seen many times for respiratory problems. The physician stated that some of his symptoms may have been related to his OSA, which was never diagnosed. The physician stated that OSA doesn't just spontaneously appear and that it is usually present for years before it is diagnosed.  The physician stated that he feels sure that the Veteran's OSA was present while he was in the military. See August 2016, Medical Treatment Record, South Georgia Medical Associates (E.G.G.,
 sleep apnea.

In an August 17, 2016, the Veteran submitted a nexus letter from his physician who stated that it is true that the Veteran was diagnosed for OSA after discharge; however, the physician stated that in reviewing his medical records, the Veteran was seen many times for respiratory problems. The physician stated that some of his symptoms may have been related to his OSA, which was never diagnosed. The physician stated that OSA doesn't just spontaneously appear and that it is usually present for years before it is diagnosed.  The physician stated that he feels sure that the Veteran's OSA was present while he was in the military. See August 2016, Medical Treatment Record, South Georgia Medical Associates (E.G.G., MD).

Similarly, in December 2018, the Veteran submitted a nexus letter from a family practice physician who stated that although sleep apnea was diagnosed after discharge from military service, more than likely, he was undiagnosed while serving.  The physician stated that the Veteran reports that during this time, he was evaluated frequently for respiratory related problems.  The physician stated that conceivably, some of these respiratory problems could have been associated with sleep apnea.  The physician stated that OSA is not a condition that appears spontaneously, and more than likely, he had had sleep apnea for many years, including the time spent in military service. See February 6, 2018, Nexus Letter (J.S., MD).

In a May 2019 VA Sleep Apnea, the Veteran's diagnosis of sleep apnea was confirmed. On medical history, the examiner noted the Veteran's report of the date of onset in 2003.  The examiner documented the Veteran's report that he had no energy during the day because he was not getting a good night's rest. The examiner noted the Veteran's report that he was having to take frequent naps prior to the diagnosis of sleep apnea. The examiner noted the Veteran has had several sleep studies and uses the CPAP machine every night since 2004.  In a comment section, the examiner noted that the Veteran does not have any current symptoms related to sleep apnea (i.e., persistent daytime hypersomnolence), because he uses his CPAP every night.  The examiner noted that if he does not use his CPAP nightly, he will have symptoms related to sleep apnea. See May 2019, Sleep Apnea examination

In a subsequent medical opinion, the examiner opined against a nexus to service. The examiner determined that that they were unable to say for sure whether Veteran had sleep apnea during service, since the diagnosis date of OSA was after discharge.  However, she stated that sleep apnea usually progresses overtime rather than just appearing, so the symptoms that the Veteran was experiencing during service seem to be related to a, then, undiagnosed sleep apnea problem. 

The examiner reported that they were unable to say for sure without mere speculation whether he did indeed have sleep apnea during service that was undiagnosed. The examiner noted that according to the European Respiratory Journal, a worsening of snoring and sleep apnea can depend on weight gain, and to a lesser extent, time (erj.ersjournals.com). See May 2019, Sleep Apnea Examination and Medical Opinion.  

In June 2019, a VA examiner rendered a negative nexus opinion, reasoning that review of the Veteran's service treatment records shows no evidence of the diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty. 

Addressing snoring and insomnia symptoms, the examiner noted that snoring, unrestful sleep, "gasping", "trouble sleeping", insomnia are not pathognomonic for sleep apnea. The examiner noted that sleep apnea is diagnosed by polysomnography, apnea/hypoxia index (AHI) is the diagnostic standard for OSA. An AHI greater that 5 indicates sleep apnea.  She noted that people often will have episodes of "gasping" or brief times of stopping breathing, however, less than 5/hour is considered normal. The examiner noted that insomnia is not a sign of sleep apnea and the two are mutually exclusive.  The examiner noted that insomnia is a sleep disorder where people have trouble sleeping.  The examiner explained that they may have difficulty falling asleep, or staying asleep as long as desired.  The examiner explained that insomnia is typically followed by daytime sleepiness, low energy, irritability, and a depressed mood and that in contrast people with sleep apnea have no trouble falling or staying asleep.  The examiner noted that definite risk factors for OSA include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. The examiner noted that obesity is the best documented risk factor for OSA. The examiner noted that the prevalence of OSA progressively increases as
 noted that insomnia is not a sign of sleep apnea and the two are mutually exclusive.  The examiner noted that insomnia is a sleep disorder where people have trouble sleeping.  The examiner explained that they may have difficulty falling asleep, or staying asleep as long as desired.  The examiner explained that insomnia is typically followed by daytime sleepiness, low energy, irritability, and a depressed mood and that in contrast people with sleep apnea have no trouble falling or staying asleep.  The examiner noted that definite risk factors for OSA include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. The examiner noted that obesity is the best documented risk factor for OSA. The examiner noted that the prevalence of OSA progressively increases as the body mass index and associated markers (e.g., neck circumference, waist-to-hip ratio) increase. The examiner noted that craniofacial and upper airway soft tissue abnormalities each increase the likelihood of having or developing OSA. The examiner noted that examples of such abnormalities include an abnormal maxillary or short mandibular size, a wide craniofacial base, tonsillar hypertrophy, and adenoid hypertrophy. See June 21, 2019, Medical Opinion (J.M.)

The Board notes that the June 2019 examiner's rationale is largely based on the absence of an in-service diagnosis or specific treatment for the diagnosis of sleep apnea during service-irrespective of reported symptoms during service. The Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 

Further, the Board notes that the January 2019 examiner does not refute the medical principle iterated by 2 physicians, including the May 2019 VA examiner, that sleep apnea usually progresses overtime, rather than just appearing. See August 2016, Medical Treatment Record, South Georgia Medical Associates (E.G.G., MD); February 6, 2018, Nexus Letter (J.S., MD); May 2019, VA medical opinion, pgs. 1-2.

The Board observes that the June 2019 examiner also does not address the proximity between the Veteran's reported symptoms of day-time fatigue on his January 2004 post deployment medical history and his treatment for obstructive sleep apnea, with use of CPAP, 9 months from his separation from service-and the fact that he no longer has symptoms of sleep apnea (i.e., persistent daytime hypersomnolence), with the use of the CPAP.  The Board also notes that the examiner does not address the comments from 2 physicians noting the Veteran's in-service treatment for upper-airway conditions during service, and their association with sleep apnea.  

In November 2020, the Veteran submitted a nexus letter from a Family Nurse Practitioner on behalf of the Veteran's pulmonary physician.  The nurse practitioner noted that the Veteran's pulmonologist is a sleep specialist.  She stated that the Veteran has shown great compliance with CPAP, with a good response to his symptoms related to sleep apnea prior to treatment. The clinician stated that after discussing the Veteran's symptoms of daytime sleepiness, snoring and witnessing apneas that he was experiencing while still in military service, there is a high probability that he did indeed have obstructive sleep apnea that was undiagnosed at the time. See November 13, 2020, Nexus Letter (J.S., FNP), cosigned by the Veteran's pulmonologist.  

In view of the totality of evidence, the Board finds that there is at least an approximate balance of evidence to indicate that the Veteran's diagnosed obstructive sleep apnea had onset during service, particularly when factoring the Veteran's reported symptoms at separation, the proximity of his treatment for sleep apnea following separation and competent medical evidence to support the premise that sleep apnea does not just appear.  When cases such as this contain an approximate balance of positive and negative evidence regarding the matter at issue, the Board must resolve reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

The Board therefore resolves reasonable doubt in favor of the Veteran and finds his sleep apnea is related to his service.  As the claim is being granted on a direct service basis, a discussion regarding secondary service connection is not warranted.  The claim is hereby granted.

 

 

CHRISTOPHER A. WENDELL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Little, Calvin

The Board's decision in this case is binding only with respect
 an approximate balance of positive and negative evidence regarding the matter at issue, the Board must resolve reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

The Board therefore resolves reasonable doubt in favor of the Veteran and finds his sleep apnea is related to his service.  As the claim is being granted on a direct service basis, a discussion regarding secondary service connection is not warranted.  The claim is hereby granted.

 

 

CHRISTOPHER A. WENDELL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Little, Calvin

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.