SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served from 2011 to 2012, including service in Afghanistan, appeals the denial of service connection for sleep apnea. The veteran claimed sleep apnea as secondary to service-connected mental health, neck, and low back disabilities, as well as obesity, and also linked it to combat stressors. The Board denied the claim because the veteran did not have a current diagnosis of sleep apnea. While the veteran reported symptoms like snoring and gasping for air, and a private physician provided a clinical diagnosis based on a screening form, the Board found this insufficient. A diagnosis of sleep apnea requires objective testing, such as a sleep study, which the veteran failed to attend. The Board noted the veteran's service treatment records from 2010-2012 did not indicate sleep apnea symptoms, only insomnia and fatigue, and recent VA treatment records were from 2015. The Board also considered the veteran's Persian Gulf War veteran status due to his Afghanistan service but found Afghanistan does not qualify for the undiagnosed illness presumption under 38 C.F.R. § 3.317. The Board also considered PACT Act presumptions for airborne hazards but found no eligible conditions or nexus arguments for sleep apnea. The Board concluded that the duty to assist was met and the evidence did not establish a current disability, thus denying service connection for sleep apnea.

Rationale

No current diagnosis of sleep apnea established.; Veteran failed to attend scheduled sleep study.; Private medical opinion insufficient without objective testing.

Full Decision Text

Citation Nr: A26039213
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 230524-350160
DATE: April 28, 2026

ORDER

Service connection for sleep apnea is denied.

FINDING OF FACT

There has been no diagnosed sleep apnea disability at any time during the appeal period or recent in time to the claim on appeal.

CONCLUSION OF LAW

The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2023 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which addressed a September 28, 2022, Supplemental Claim Application (VA Form 20-0995) after a prior denial of service connection for sleep apnea. The RO found that new and relevant evidence had been submitted, sufficient to readjudicate the prior denial, but continued the denial. (Although a May 2024 rating decision granted service connection for sleep apnea effective since January 2, 2024, this appeal is from a prior claim denial, which may result in an earlier effective date.) In a May 24, 2023, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review option. Under this option, the Board may only consider the evidence of record at the time of the February 2023 decision. 38 C.F.R. § 20.301. 

Docket Election and Evidentiary Period

The Board previously addressed this matter in a January 2025 decision, which discussed the above history and denied service connection for sleep apnea. The Veteran appealed from that denial to the Court of Appeals for Veterans Claims (CAVC), which issued a December 2025 Order to vacate and remand the January 2025 decision only with respect to the denial of sleep apnea, pursuant to a Joint Motion for Partial Remand (JMPR). The JMPR specified that the Veteran did not appeal the dismissal of his separate claim for service connection for migraines.

In the JMPR, the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its January 2025 decision, in that it did not address the applicability of 38 C.F.R. § 20.202(f) and the Court's holding in Edwards v. McDonough, 36 Vet. App. 56 (2023), to this case. In this regard, as noted in the analysis section of the prior decision, with his May 2023 VA Form 10182, the Veteran stated that he was unable to attend the scheduled sleep study appointment for his claim due to unforeseen circumstances, which were not specified, and he was told that he would need to reapply. This constitutes additional evidence after the February 2023 decision on appeal; thus, it was outside the allowable evidentiary period for his elected Direct Review option.

With regard to Edwards, the June 1, 2023, Board docketing letter sent to the Veteran and his representative included a paragraph explaining his rights under 38 C.F.R. § 20.202(f) that he may switch dockets within 60 days after receipt of the VA Form 10182 or one year after the decision on appeal, whichever is later. No request to switch dockets was received within those periods (or through the present). Accordingly, no further clarification of the desired docket is needed, and the additional evidence with the VA Form 10182 may not be considered. 

The Board may not, and has not, considered any evidence that was submitted by the Veteran or his representative, or was otherwise added to the claims file, after the decision on appeal. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that the Board could not consider at this time, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify such evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the issues, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Legal Requirements and Analysis

The Veteran primarily contends that he has sleep apnea as secondary to service-connected mental health, neck and low back disabilities, to include from obesity
 §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that the Board could not consider at this time, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify such evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the issues, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Legal Requirements and Analysis

The Veteran primarily contends that he has sleep apnea as secondary to service-connected mental health, neck and low back disabilities, to include from obesity due to decreased activity or exercise, energy, and motivation. See, e.g., claim forms and statements for claims in January 2019, May 2022, and September 2022; private medical nexus letter dated in May 2022. The Veteran also asserted in his April 2023 current claim that he has sleep apnea due to sleep problems resulting from his combat service, for which he received a Combat Infantryman's Badge (CIB). The Veteran's representative has not submitted additional 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, 1131, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (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). 

Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310.

In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

In this case, it is unnecessary to address the nexus element, to include obesity as an intermediate step, because the claim must be denied due to no current disability. A current disability is one that is present at any time during the pendency of the claim or recent to the filing of the claim, even if it has resolved. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

The Veteran has not had a sleep apnea disability at any time during the appeal period or recent in time to the claim. He is competent to report his observable symptoms, to include snoring, difficulty sleeping and waking up gasping for air. However, he is not competent to give a diagnosis for these symptoms. This question requires medical training, knowledge, or expertise due to the complex nature and multiple potential causes of his symptoms, as well as his diagnosed mental health disorder that results in chronic sleep impairment with fatigue.

The Veteran submitted a private evaluation from Dr. M dated in May 2022 with a screening form for sleep apnea (STOP-Bang Questionnaire), which showed a high risk of sleep apnea. Dr. M gave a clinical diagnosis of sleep apnea based on the reported symptoms on this form, and recommended weight management and other treatment. This opinion is insufficient to establish a diagnosis of sleep apnea because that condition must be shown based on objective testing through a sleep study due to the multiple potential causes for the Veteran's symptoms, as well as his diagnosed mental health disorders that also result in sleep impairment. 

In a statement with his September 2022 claim, the Veteran indicated that his service-connected anxiety causes a dry mouth upon awakening and sleep difficulties of leg kicks while sleeping, vivid nightmares, and a hard time staying asleep. He also stated that service-connected back and neck disabilities keep him from exercising or sleeping on his side and make it difficult to fall and stay asleep.

In November 2022, the Veteran's wife submitted a statement describing his mental health symptoms and their effects, as well as stories he had told her about combat stressors during his deployment to Afghanistan. She stated that he "seldom gets a solid night's sleep," and when asked why, he said he was bothered by back pain. 

During a December 2022 VA examination for sleep apnea, the Veteran reported that his sleep problems began in 2011 during his Afghanistan
 a dry mouth upon awakening and sleep difficulties of leg kicks while sleeping, vivid nightmares, and a hard time staying asleep. He also stated that service-connected back and neck disabilities keep him from exercising or sleeping on his side and make it difficult to fall and stay asleep.

In November 2022, the Veteran's wife submitted a statement describing his mental health symptoms and their effects, as well as stories he had told her about combat stressors during his deployment to Afghanistan. She stated that he "seldom gets a solid night's sleep," and when asked why, he said he was bothered by back pain. 

During a December 2022 VA examination for sleep apnea, the Veteran reported that his sleep problems began in 2011 during his Afghanistan deployment, when he was unable to sleep due to injury and operation tempo. He reported waking himself up gasping for air and that his wife wakes him up because he is not breathing or is gasping for air, and that these wakening cause daytime somnolence. He denied having a sleep study. As noted in multiple December 2022 VA examination and opinion reports, the Veteran did not appear for a scheduled sleep study to determine if a sleep apnea diagnosis is appropriate. Thus, no diagnosis could be given, and negative secondary service connection opinions were given due to no diagnosis. 

Although VA treatment records were obtained from several facilities, the most recent records were dated in 2015. Thus, there are no records during the appeal evidentiary period or recent in time to the Veteran's February 2023 claim to assist in establishing a diagnosis or indicate why he missed the sleep study appointment. 

The Veteran has a responsibility to cooperate in the development of his claim. He did not provide a reason for missing the scheduled sleep study, which was necessary to determine if he has sleep apnea to establish a current disability.

As noted above, the Veteran's assertion in his May 2023 VA Form 10182 that he was unable to attend the scheduled sleep study appointment due to unforeseen circumstances, which were not specified, and was told that he would need to reapply, was outside the allowable evidentiary period and may not be considered. 

Additionally, a January 11, 2023, report of general information reflects that the Veteran called to reschedule a VA examination appointment for a claim identified as 020/11/17/2022 (or November 17, 2022, where "020" is the AOJ code for a claim), indicating that he missed the examination due to a conflicting work schedule. The Veteran's sleep apnea claim was received in September 2022. The claim on November 17, 2022 (VA Form 21-526EZ) was for a mental health disability, low testosterone, and a testicular condition. A December 2022 memorandum reflects that the Veteran did not show for an examination for his mental health disorder related to his November 17, 2022, claim; and a new examination for that condition was requested on January 12, 2023. Thus, the January 2023 request to reschedule an examination was not related to the sleep apnea claim or sleep study. No remand or additional development is needed.

Moreover, prior records during and after the Veteran's active duty service from 2011 to 2012 did not reflect complaints of sleep apnea symptoms or difficulties; rather, he was diagnosed with insomnia. Several months before the deployment, a September 2010 service treatment record (not in active duty status) noted that he changed sleeping positions frequently due to back pain. A December 2011 service record during the Veteran's deployment noted insomnia with occasional fatigue after sleeping 6 to 7 hours and awakening about every 2 hours, with no nightmares, which had been worse for one month. He was prescribed Ambien. Consistent with this record, a March 2012 post-deployment health assessment indicated that the Veteran was treated for sleep issue while deployed, but he denied any current sleep issues. These records are generally consistent with the December 2022 VA examination's notation of sleep problems that began during the deployment in 2011 related to injury and operation tempo. A September 2012 VA treatment record noted that sleep problems began or worsened after his OIF/OEF deployment.

The above records are also generally consistent with reports by the Veteran and his wife, as noted above, of problems sleeping due to his mental health and pain.

Generally, pain or other symptoms may establish a disability without an underlying diagnosis if they result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For such purposes, functional impairment means to "diminish the body's ability to function," and "VA must undertake an individualized assessment, which includes a preliminary evaluation of the degree of impairment" of earning capacity.
 operation tempo. A September 2012 VA treatment record noted that sleep problems began or worsened after his OIF/OEF deployment.

The above records are also generally consistent with reports by the Veteran and his wife, as noted above, of problems sleeping due to his mental health and pain.

Generally, pain or other symptoms may establish a disability without an underlying diagnosis if they result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For such purposes, functional impairment means to "diminish the body's ability to function," and "VA must undertake an individualized assessment, which includes a preliminary evaluation of the degree of impairment" of earning capacity. Wait v. Wilkie, 33 Vet. App. 8, 15 (2020).

Although pain is not part of the reported sleep apnea symptoms, or of the unconfirmed clinical diagnosis of sleep apnea noted by Dr. M, the December 2022 VA examination noted the Veteran's reports that his daytime somnolence (or being sleepy) was affecting his work and his wife had complained about him not concentrating during the daytime. He was employed as a police officer. 

These symptoms could result in impairment of earning capacity, including with consideration of potentially applicable rating criteria based on analogy. Persistent daytime hypersomnolence would be assigned a 30 percent rating under the criteria for sleep apnea. See 38 C.F.R. § 4.97, Diagnostic Code 6847. Chronic sleep impairment and difficulty concentrating are types of symptoms that could support a 30 percent or higher rating under the criteria for mental health disabilities. See 38 C.F.R. § 4.130, Diagnostic Codes 9400 for anxiety and 9411 for PTSD. 

However, the Veteran is already service-connected for PTSD, previously rated as anxiety, with a rating of 30 percent or more effective since January 2021 for symptoms including chronic sleep impairment and difficulty concentrating. There is no suggestion that any somnolence or fatigue during the day that may be due to undiagnosed sleep apnea is distinguished from his fatigue from sleep impairment and difficulties concentrating due to his mental health disability. Thus, it would be inappropriate and constitute impermissible pyramiding under 38 C.F.R. § 4.14 to find a disability without an underlying diagnosis based on the same symptoms. Other asserted symptoms of sleep apnea as noted in the May 2022 screening form and medical opinion from Dr. M did not result in effects on earning impairment. Accordingly, a disability is not established under Saunders and Wait, supra.

The presumptions for certain Persian Gulf War veterans have also been considered due to this Veteran's active service in Afghanistan. In December 2022 and January 2023, VA memos determined that the Veteran is a Persian Gulf Veteran under 38 U.S.C. § 1117 and had presumptive toxic exposure risk activities (TERA) under 38 U.S.C. § 1119, both based on his service in Afghanistan from 2011 to 2012.

Relevant to § 1117, Persian Gulf veterans with service in the Southwest Asia theater of operations, as defined by regulation, may be service-connected on a presumptive basis for a qualifying chronic disability resulting from symptoms of an undiagnosed illness or a diagnosed but medically unexplained chronic multisymptom illness (MUCMI) if such conditions manifested after the qualifying service, even with no other link. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. 

For this purpose, Afghanistan is not included in the definition of the Southwest Asia theater of operations. See 38 C.F.R. § 3.317(e). Service in Afghanistan on or after September 19, 2001, qualifies only for the presumption of service connection for infectious disease under 38 C.F.R. § 3.317(c), not for the presumption for undiagnosed illness or MUCMI. Thus, no development is needed in this regard.

Relevant to § 1119, service in Afghanistan on or after September 19, 2001, qualifies for a presumption of service connection for asthma, rhinitis, sinusitis or rhinosinusitis, and certain rare cancers based on presumed exposure to fine particular matter, to include burn pits. See 38 U.S.C. § 1119; 38 C.F.R. § 3.320. However, no eligible conditions under these provisions are at issue in this case, and there is no argument or medical opinion suggesting a facts-found nexus for sleep apnea to such exposures. Thus, no development is needed in this regard.

In summary, the duty to assist was met, and the evidence is not in at least relative equipo
 to § 1119, service in Afghanistan on or after September 19, 2001, qualifies for a presumption of service connection for asthma, rhinitis, sinusitis or rhinosinusitis, and certain rare cancers based on presumed exposure to fine particular matter, to include burn pits. See 38 U.S.C. § 1119; 38 C.F.R. § 3.320. However, no eligible conditions under these provisions are at issue in this case, and there is no argument or medical opinion suggesting a facts-found nexus for sleep apnea to such exposures. Thus, no development is needed in this regard.

In summary, the duty to assist was met, and the evidence is not in at least relative equipoise as to a current disability. Thus, there is no reasonable doubt to be resolved in the Veteran's favor for service connection. The appeal is denied.

Please note, this decision in no way affects the subsequent grant of service connection for the claimed disability. Rather, this decision pertains only to the September 2022 supplemental claim for service connection and the February 2023 rating decision. As explained above, given the Veteran's choice of the Direct Review docket in his May 2023 VA Form 10182, the Board's review of evidence in this decision was limited to what was of record at the time of the February 2023 decision. The Veteran subsequently filed a Supplemental Claim for sleep apnea in January 2024, which was ultimately granted. This appeal persisted to determine whether the evidence was sufficient for a grant based on the earlier claim in September 2022. The Board finds that it was not and, thus, denies the earlier claim.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christa Wheatley

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.