SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran served from September 1976 to September 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from October and February rating decisions concerning sleep apnea, hepatic steatosis, and rheumatoid arthritis. The Veteran elected the evidence submission docket, limiting the Board's review to evidence of record at the time of the AOJ decisions or submitted within 90 days. The Board noted that any evidence submitted outside this window would require a supplemental claim. The Veteran's service treatment records were negative for sleep apnea, and recent VA treatment records indicated no history of the condition, leading the Board to deny service connection for sleep apnea due to lack of current disability. For hepatic steatosis, claimed due to Camp Lejeune water exposure, a private medical record showed fatty liver but no associated symptoms or functional impairment, leading to denial as it did not constitute a disability for VA compensation purposes. The Board remanded the issue of rheumatoid arthritis due to a pre-decisional duty to assist error. A VA examiner opined the rheumatoid arthritis was less likely than not caused by toxic exposure, but failed to address direct service connection or specific maladies noted in service. A private medical opinion was also unclear, generally linking the disorder to service without specifying the event or exposure. The remand directs the AOJ to obtain a new medical opinion addressing the etiology of rheumatoid arthritis, considering service treatment records of joint pain, exposure to contaminated water, and the Veteran's testimony, with a clear rationale for the opinion.

Rationale

Service treatment records negative for sleep apnea; Recent VA treatment records indicate no history of sleep apnea; No evidence of current diagnosis submitted; Existence of current disability required for compensation

Full Decision Text

Citation Nr: A26040117
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 251030-603219
DATE: April 29, 2026

ORDER

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for hepatic steatosis is denied.

REMANDED

Entitlement to service connection for rheumatoid arthritis is remanded.

FINDINGS OF FACT

1.  The Veteran has not been shown to have sleep apnea since he filed his claim or within close proximity thereto.

2.  Hepatic steatosis or a fatty liver is a laboratory test result and not a disability for VA compensation purposes.  The Veteran has not been diagnosed with an associated or resulting chronic liver disorder since he filed his claim or within close proximity thereto.

CONCLUSIONS OF LAW

1.  The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2.  The criteria for service connection for hepatic steatosis are not met.  38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1976 to September 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from      October 2024 and February 2025 rating decisions.  

The Veteran submitted a VA Form 10182 in October 2025 and elected the evidence submission docket.  Therefore, the Board may only consider the evidence of record at the time of the October 2024 and February 2025 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.  

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he 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.  However, because the Board is remanding the issue of entitlement to service connection for rheumatoid arthritis, any evidence that the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

Law and Analysis

The Veteran and his representative have not raised any issues with the pre-decisional duty to notify or duty to assist with regard to the issues decided herein.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that
lying Scott to a duty to assist argument).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminants present in the water supply at Camp Lejeune.  For purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987.  38 C.F.R. § 3.307(a)(7)(i).

Section § 3.307(a)(7) provides that a veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service.  38 C.F.R. § 3.307(a)(7)(iii).

The enumerated diseases which are deemed to be associated with exposure to contaminated water at Camp Lejeune are kidney cancer; liver cancer; non-Hodgkin's lymphoma; adult leukemia; multiple myeloma; Parkinson's disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. 38 C.F.R. § 3.309 (f).  The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307 (a)(7)(ii).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

Sleep Apnea

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for sleep apnea.

The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of sleep apnea.

Moreover, the evidence does not show that the Veteran has had sleep apnea since he filed his claim in May 2024 or within close proximity thereto.  Indeed, there are no treatment records documenting any complaints, treatment, or diagnosis for sleep apnea.  Rather, June 2024 and October 2024 VA treatment records specifically indicated that there was no history of obstructive sleep apnea.  In addition, the Veteran and his representative have not identified or submitted any evidence of a current diagnosis.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran currently has the disability for which benefits are
4 and October 2024 VA treatment records specifically indicated that there was no history of obstructive sleep apnea.  In addition, the Veteran and his representative have not identified or submitted any evidence of a current diagnosis.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran currently has the disability for which benefits are being claimed.

Because the evidence shows that the Veteran does not have sleep apnea, the Board concludes that service connection is not warranted, and discussion of the remaining elements is not necessary.  See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). 

To the extent that the Veteran has asserted that he has a lung disorder other than sleep apnea, the Board notes that there is a separately docketed appeal that includes the issue of entitlement to service connection for interstitial lung disease, which will be addressed in a separate decision.

Hepatic Steatosis 

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for hepatic steatosis (fatty liver).

The Veteran has claimed that he hepatic steatosis/fatty liver due to exposure to contaminated drinking water at Camp Lejeune. See August 2024 VA Form 21-526EZ.  

An August 2024 private medical record shows that an ultrasound revealed fat in the Veteran's liver, which was noted as being common.  It was also noted that the ultrasound was otherwise normal.

Hepatic steatosis or a fatty liver is not, in and of itself, a disability for which VA compensation benefits are payable.  The term "disability" as used for VA purposes refers to impairment of earning capacity.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In this regard, the evidence does not show that any abnormal liver test results, to include a fatty liver, have been manifested by symptoms, caused functional impairment, or impaired earning capacity.  See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018); Allen, 7 Vet. App. at 448.  Indeed, there are no treatment records documenting any symptomatology or impairment, and the Veteran and his representative have not identified or submitted evidence of such findings.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran currently has a disability for which benefits are claimed.  

Because the evidence shows that the Veteran has not had a current disability for VA compensation purposes, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary.  See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection).

REASONS FOR REMAND

Upon review, the Board finds that a remand is needed to correct a pre-decisional duty to assist error.

A November 2024 VA examiner opined that the Veteran's rheumatoid arthritis was less likely than not caused by the indicated toxic exposure risk activity(ies) (TERA), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.  Although he specifically discussed the Veteran's exposure to contaminated water to Camp Lejeune, he did not address direct service connection, particularly given the service treatment records documenting various joint pains.  Therefore, the Board finds that an additional medical opinion was needed.

In remanding this matter, the Board acknowledges the June 2024 private medical opinion provided by Dr. M.W. (initials used to protect privacy).  He indicated that he was very familiar with the Veteran's history and that he reviewed medical literature and other records, including the Veteran's own notes regarding maladies in service.  He stated that there were no other precip
 applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.  Although he specifically discussed the Veteran's exposure to contaminated water to Camp Lejeune, he did not address direct service connection, particularly given the service treatment records documenting various joint pains.  Therefore, the Board finds that an additional medical opinion was needed.

In remanding this matter, the Board acknowledges the June 2024 private medical opinion provided by Dr. M.W. (initials used to protect privacy).  He indicated that he was very familiar with the Veteran's history and that he reviewed medical literature and other records, including the Veteran's own notes regarding maladies in service.  He stated that there were no other precipitating factors to cause his rheumatoid arthritis, and therefore, Dr. M.W. concluded that the disorder was highly likely a direct result of his military service.  However, the opinion as written is unclear, as Dr. M.W. did not identify the disease or event in service to which he believed the disorder is related.  Indeed, he made no mention of contaminated water and only generally referred to the Veteran's notes regarding maladies in service without specifying them.  

The matter is REMANDED for the following actions:

The AOJ should obtain a medical opinion to determine the etiology of the Veteran's rheumatoid arthritis.

The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should opine as to whether it is at least as likely as not that the Veteran's rheumatoid arthritis is causally or etiologically related to his military service, to include any symptomatology (such as joint pains) and exposure to contaminated water at Camp Lejeune.

The examiner should consider the total potential exposure through all applicable military deployments and service as well as the synergistic and combined effects of all toxic exposure risk activities (TERA).   

A clear rationale for all opinions should be provided.

 

J.W. ZISSIMOS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rideout-Davidson, B.

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.