SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served from May 1991 to May 1995, appeals the denial of service connection for obstructive sleep apnea as secondary to his service-connected left foot 5th metatarsal fracture. The veteran contends that chronic pain from his foot injury led to a more sedentary lifestyle, resulting in weight gain and subsequently obstructive sleep apnea. The Board found that the April 2025 VA rating decision favorably established the veteran's diagnosis of obstructive sleep apnea and that the primary disability (left foot fracture residuals) was service-connected. The Board reviewed conflicting medical opinions. A November 2024 private opinion from Z. M., M.D., found it at least as likely as not that the obstructive sleep apnea was secondary to the service-connected foot condition via the intermediary role of obesity, citing the veteran's weight gain and reduced activity due to pain. The Board found this opinion adequate and probative. In contrast, an April 2025 VA opinion opined that obstructive sleep apnea was less likely than not proximately due to the service-connected condition, stating no direct link between the fracture and sleep apnea, though acknowledging pain could affect sleep quality. The Board found this VA opinion inadequate because it failed to address secondary aggravation or the intermediate role of obesity. Given the probative private opinion and the inadequacy of the VA opinion, the Board granted service connection for obstructive sleep apnea as secondary to the service-connected left foot residuals.

Rationale

Probative private medical opinion found obstructive sleep apnea secondary to service-connected foot condition via obesity.; VA opinion found inadequate for failing to address secondary aggravation and obesity intermediate step.; No sufficient basis to reject probative private opinion.

Full Decision Text

Citation Nr: A26040084
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 250829-582670
DATE: April 29, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea as secondary to service connected residuals of left foot 5th metatarsal fracture is granted.

FINDING OF FACT

The Veteran's obstructive sleep apnea is caused by his service connected residuals of left foot 5th metatarsal fracture.

CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea as secondary to service connected residuals of left foot 5th metatarsal fracture have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1991 to May 1995.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 24, 2025 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the August 2025 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 April 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, 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 is cognizant of the recent decision issued by the United States Court of Appeals for Veterans Claims (Court) in the case of Williams v. McDonough, 37 Vet. App. 305 (2024). There, the Court held, in essence, that the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202(c)(2). In this case, a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202(c)(2) as it is more than one year from the date that the AOJ mailed notice of the decision on appeal, and it is more than 60 days of the date that the Board received the August 2025 VA Form 10182. Therefore, the Board shall proceed with adjudication.

1. Entitlement to service connection for obstructive sleep apnea as secondary to service connected residuals of left foot 5th metatarsal fracture

The Veteran seeks entitlement to obstructive sleep apnea as secondary to service connected residuals of left foot 5th metatarsal fracture. See November 2024 statement in support of his claim. The Veteran indicates that because of the chronic pain in his left foot, he is no longer able to exercise which led to weight gain and subsequently his obstructive sleep apnea. The April 2025 rating decision favorably found that the Veteran has been diagnosed with obstructive sleep apnea and the primary disability is service connected; the Board is bound by these favorable findings.

Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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 be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 
 from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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 be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R.                        § 3.310(b).

Obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VAOPGCPREC-1-2017. In Walsh, the Court further held that the Board needs to consider the obesity-intermediate step theory predicated on aggravation where appropriate. The Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused the veteran to become obese or aggravated the veteran's obesity; (2) if so, whether the obesity/aggravation of 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 these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).

The veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id.; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999).

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch
.; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999).

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Turning to the question of whether there is an etiological relationship between the Veteran's obstructive sleep apnea and a service connected disability, the Board notes that the record contains the below etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider the opinions below. 

In a November 2024 private opinion from Z. M., M.D., the provider indicates that it is at least as likely that the Veteran's obstructive sleep apnea was secondary to his service connected left foot condition via intermediary role of obesity. The provider reasoned, in part, that the Veteran has reported that he weighed 225 pounds upon military separation and has a current weight of 280 pounds with a body mass index of 35.9. The providers notes that this meets the national standard by the Centers for Disease Control for obesity and that this is evidence of overall progressive weight gain and a current obesity condition which chronologically developed after the musculoskeletal symptomatology related to his service-connected disability condition. The provider further notes that the Veteran was awarded service connection with consideration of the following symptomology: pain, painful motion and associated sleep disturbances with insomnia and frequent awakenings. The provider indicates that, due to the persistent pain of his service-connected left foot disorder, he was unable to be as active as he was before his musculoskeletal condition and subsequently began to progressively gain weight. The provider further noted that weight gain has been established as secondary sequelae of a more sedentary lifestyle related to joint pain, knee stiffness, and muscle weakness and that veterans with chronic pain have reduced aerobic fitness levels for fear of re-injury which would lead to obvious weight gain. 

Dr. Z.M. further states that medical studies found that the upper airway anatomy plays a major role in obstructive sleep apnea pathogenesis and that an inferiorly displaced hyoid as measured by the mandibular plane to hyoid distance has been consistently associated with obstructive sleep apnea. The provider indicated that  hyoid is also a common landmark for pharyngeal length, upper airway volume, and tongue base. The provider indicated that tongue dimensions, pharyngeal length, and obesity are associated with obstructive sleep apnea severity, although the link between these anatomical variables and pharyngeal collapsibility is less well known. The provider indicated that obesity as measured by body mass index, neck and waist circumferences, and variables associated with hyoid position (pharyngeal length, upper airway volume, and tongue dimensions) have been found in the medical literature to be associated with passive pharyngeal critical closing pressure and that documented the pathophysiological processes that occur in obstructive sleep apnea due to obesity. The provider noted that they reported that the deposition of fat around the pharyngeal airway is likely to increase the collapsibility of the pharyngeal airway and that fat deposition around the abdomen leads to reductions in functional residual capacity which would be predicted to reduce lung volume tethering effects on the upper airway. The provider noted that low lung volumes are also associated with diminished oxygen stores, which would contribute to ventilatory control instability (high loop gain) and that obesity has been associated with functional impairment and weakening in the upper airway muscles. The Board finds this opinion to be adequate as the provider discussed relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). This opinion is therefore
 that low lung volumes are also associated with diminished oxygen stores, which would contribute to ventilatory control instability (high loop gain) and that obesity has been associated with functional impairment and weakening in the upper airway muscles. The Board finds this opinion to be adequate as the provider discussed relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). This opinion is therefore afforded probative weight.

In an April 2025 VA opinion, the examiner opined that obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's service connected condition. The examiner noted that, after review of the medical literature, there is no evidence to link the cause of sleep apnea to the left foot fracture and therefore no nexus can be established. The examiner noted that a history of a fractured 5th metatarsal in the left foot does not directly cause sleep apnea and that while a fractured 5th metatarsal can lead to complications like pain and impaired mobility, it's not a known or direct cause of obstructive sleep apnea. The examiner noted that obstructive sleep apnea is primarily caused by obstructions in the upper airway during sleep, and the 5th metatarsal fracture itself does not interfere with this process and that chronic pain from the fracture could lead to changes in sleep patterns and potentially affect sleep quality. The examiner noted that individuals experiencing pain might have difficulty falling asleep or staying asleep, and they might wake up frequently throughout the night. The Board finds the April 2025 VA opinion to be inadequate to decide the claim. In this regard, an opinion as to secondary aggravation was not provided, to include whether obesity as an intermediate step should be considered. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). This opinion is therefore afforded little, if any, probative weight.

In sum, the Veteran has a current diagnosis of obstructive sleep apnea. The only probative opinion of record is in support of the Veteran's claim for entitlement to service connection on a secondary basis. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).

Accordingly, the Board finds that entitlement to service connection for obstructive sleep apnea as secondary to service connected residuals of left foot 5th metatarsal fracture is warranted. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. McPhaull, Counsel

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.