SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, who served from an unspecified date to an unspecified date, appeals the denial of service connection for obstructive sleep apnea (OSA). The claim for OSA was presented as secondary to service-connected tinnitus. The Board reviewed the evidence of record as of January 2025, as the case was remanded for further development due to a pre-decisional duty-to-assist error. The Veteran's service treatment records (STRs) indicated an in-service evaluation for upper airway irritation in April 1992, but no mention of OSA. The separation examination also did not reflect any OSA complaints. A November 2023 VA examiner opined that the OSA was less likely than not related to toxic material exposure or in-service upper airway irritation, citing excess weight as a risk factor. Subsequent VA examiners in March and October 2024 opined that the OSA was less likely than not proximately due to or aggravated by the Veteran's service-connected tinnitus, explaining that the conditions have distinct pathophysiological mechanisms. The Board found the Veteran's contemporaneous statements of good health at separation more probative than later statements to a VA examiner. Consequently, the Board found the weight of the evidence persuasively against a service connection for OSA, either directly or secondarily to tinnitus. Service connection for obstructive sleep apnea was denied.

Rationale

Weight of evidence against service connection for OSA; Weight of evidence against OSA being proximately due to or aggravated by tinnitus; Contemporaneous service records did not mention OSA; VA examiner opinions found less likely than not nexus

Full Decision Text

Citation Nr: A26039381
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 260116-624831
DATE: April 28, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea, to include as proximately due to or aggravated by service connected tinnitus, is denied.

FINDINGS OF FACT

1. The weight of the evidence is persuasively against a finding that the Veteran's obstructive sleep apnea is the result of an in-service event, injury, or occurrence. 

2. The weight of the evidence is persuasively against a finding that the Veteran's obstructive sleep apnea is proximately due to or aggravated by his service-connected tinnitus. 

CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea, to include as proximately due to or aggravated by service-connected tinnitus, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 

REASONS AND BASES FOR FINDING AND CONCLUSION

In June 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a June 2024 decision.  In October 2024 the agency of original jurisdiction (AOJ) returned the issue of entitlement to service connection for obstructive sleep apnea, to include as proximately due to or aggravated by service connected tinnitus, to the Supplemental Claim lane for further development after identification of a pre-decisional duty-to-assist error. In January 2025 the AOJ issued the Supplemental Claim the AOJ issued the supplemental claim rating decision on appeal.  Therefore, the Board may only consider the evidence of record at the time of the January 2025 decision [and any evidence submitted during an applicable evidentiary window].  

In the January 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to service connection for obstructive sleep apnea, to include as proximately due to or aggravated by another service connected disability, is denied. 

In March 2024 VA received the Veteran's claim of service connection for obstructive sleep apnea, to include as proximately due to or aggravated by his service connected tinnitus. 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Entitlement to service connection may be established on a secondary basis where there is evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3
 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Entitlement to service connection may be established on a secondary basis where there is evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310.

The January 2025 rating decision on appeal reflects the favorable findings that the Veteran was exposed to toxic or hazardous materials during his period of active service; that service connection is in effect for tinnitus; that the Veteran has a current diagnosis of obstructive sleep apnea; and that the service treatment records (STRs) reflect in-service evaluation for upper airway irritation in April 1992. 

The Veteran's separation examination does not reflect any report by the Veteran or notation by treating providers relating to obstructive sleep apnea. 05/01/2017	, STR - Medical, 30 -32. As noted above, the Veteran's STRs reflect that he was assessed by military treating providers as experiencing upper airway irritation due to humidity in April 1992. Id. at 14. 

In November 2023 a VA examiner opined that the Veteran's obstructive sleep apnea was less likely than not the result of his in-service toxic material exposure or related to his in-service upper airway irritation. The examiner explained that obstructive sleep apnea is a condition caused by repeated episodes of upper airway collapse and obstruction during sleep, and that risk factors for obstructive sleep apnea include excess weight. The examiner noted that the Veteran's VA treatment records reflect that he is overweight. 

In March 2024 and October 2024 VA examiners opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to or aggravated by his service connected tinnitus. The March 2024 VA examiner explained that obstructive sleep apnea is characterized by repeated episodes of partial or complete obstruction of the upper airway during sleep, leading to breathing pauses, blood oxygen desaturation, and sleep fragmentation, while tinnitus involves the perception of sound without an external source. The March 2024 VA examiner went on to state that the pathophysiological mechanisms underlying obstructive sleep apnea and tinnitus are distinct and do not directly intersect in a causal manner. Similarly, the October 2024 VA examiner explained that obstructive sleep apnea and tinnitus are separate and unrelated entities, and that no medical literature supports a finding of a relationship between the obstructive sleep apnea and tinnitus. 

The Board acknowledges that at his November 2023 VA examination the Veteran reported the onset of obstructive sleep apnea symptoms at age 18 (i.e., during his period of active service). VA must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The credibility of a witness can be impeached by a showing of interest and inconsistent statements, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

Here, the Board finds the Veteran's contemporaneous statements to VA treating providers that he was in good health at the time of his separation to be more probative of the matter of his health at the time of separation from active service than his statement to a VA examiner, more than 30 years later, in the context of a disability benefits claim. 

In light of the above, the weight of the evidence is persuasively against a finding that the Veteran's obstructive sleep apnea is the result of an in-service event, injury, or occurrence.  Likewise, the weight of the evidence is persuasively against a finding that the Veteran's obstructive sleep apnea is proximately due to or aggravated by his service-connected tinnitus. 

The criteria for entitlement to service connection for obstructive sleep apnea, to include as proximately due to or aggravated by service-connected tinnitus, are not met. 38 U.S.C. §§ 1110, 
 than his statement to a VA examiner, more than 30 years later, in the context of a disability benefits claim. 

In light of the above, the weight of the evidence is persuasively against a finding that the Veteran's obstructive sleep apnea is the result of an in-service event, injury, or occurrence.  Likewise, the weight of the evidence is persuasively against a finding that the Veteran's obstructive sleep apnea is proximately due to or aggravated by his service-connected tinnitus. 

The criteria for entitlement to service connection for obstructive sleep apnea, to include as proximately due to or aggravated by service-connected tinnitus, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sametshaw, Eric C.

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.