SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

M. C. GRAHAM · 2026 · Case ID: A26040245

MIXED

Summary

The veteran, who served in the United States Air Force from July 1979 to October 1983, appeals the denial of service connection for sleep apnea and seeks service connection for an acquired psychiatric disorder. The Board denied service connection for sleep apnea, finding that while the veteran was diagnosed with severe obstructive sleep apnea in September 2020, the service treatment records did not document any diagnosis, complaints, or treatment for sleep apnea during service. The separation examination in October 1983 did not note sleep apnea, although it did document other medical issues, including headaches and dizziness. The Board found the lack of in-service documentation persuasive, citing Buczynski v. Shinseki. The veteran's assertion of an in-service injury in October 1981 related to sleep apnea was not supported by medical evidence, and the Board found the veteran lacked the medical expertise to provide a nexus opinion. The Board also noted that private medical records showing sleep apnea symptoms and diagnosis were obtained years after service. The Board denied service connection for sleep apnea, finding the evidence weighed against the claim and the benefit-of-the-doubt doctrine was not applicable. The claim for an acquired psychiatric disorder was remanded due to a pre-decisional duty to assist error. The Board failed to attempt to obtain potentially relevant private treatment records from Dulles Psychological Services LLC, where the veteran received ongoing counseling starting February 2020. While the Board found a private opinion from an LCSW linking the condition to an in-service motor vehicle accident, it lacked probative value due to inconsistencies with service records and the LCSW's competency to diagnose PTSD. The matter is remanded for VA to obtain these post-service mental health records.

Rationale

No in-service diagnosis, complaints, or treatment for sleep apnea.; Separation examination did not note sleep apnea.; No medical evidence supports veteran's assertion of in-service injury related to sleep apnea.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201223-128335

Full Decision Text

Citation Nr: A26040245
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 201223-128335
DATE: April 29, 2026

ORDER

Entitlement to service connection for sleep apnea is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder is remanded.

FINDING OF FACT

The evidence of record persuasively weighs against finding that the Veteran's sleep apnea began during active service or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United Staes Air Force from July 1979 to October 1983. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

The rating decision on appeal was issued in December 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the December 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On May 30, 2024 the Veteran, through his authorized attorney representative, withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his authorized attorney representative within 90 days following receipt of the withdrawal of the hearing request. 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 following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 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 of entitlement to service connection for sleep apnea, 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 claim of entitlement to service connection for an acquired psychiatric disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii).

The Board has recharacterized the issue, previously adjudicated as posttraumatic stress disorder (PTSD) with major depressive disorder, broadly as service connection for any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

Most recently, in January 2021, the Veteran submitted a request for a copies of certain records from his claims file. In May 2021, the Veteran was provided with information as to how access the records via a specific portal. Also, regardless, in January 2026, the Veteran, through his authorized attorney representative, withdrew any Privacy Act requests.

As a final preliminary matter, as to the issue of representation, February 2021 correspondence notified the Veteran, and his then representative, Disabled American Veterans, that the Veteran had 90 days from the date the Board received his Board Appeal request (VA Form 10182) or until the Board issued a decision (whichever comes first) to change his representative. In January 2024, more than 90 days from the date the Board received the December 2020 VA Form 10182 as to this appeal, the Veteran submitted a new power of attorney in favor of Kenneth C. Kowren, attorney, but did not provide good cause for the change in representation. 38 C.F.R. § 20.1304(b). However, as attorney Kowren has been recognized as the Veteran's authorized representative by VA, the Board will continue to recognize attorney Kowren as the Veteran's representative for the purposes of this appeal.

The Board also recognizes attorney Kowren did not receive notice this appeal
a decision (whichever comes first) to change his representative. In January 2024, more than 90 days from the date the Board received the December 2020 VA Form 10182 as to this appeal, the Veteran submitted a new power of attorney in favor of Kenneth C. Kowren, attorney, but did not provide good cause for the change in representation. 38 C.F.R. § 20.1304(b). However, as attorney Kowren has been recognized as the Veteran's authorized representative by VA, the Board will continue to recognize attorney Kowren as the Veteran's representative for the purposes of this appeal.

The Board also recognizes attorney Kowren did not receive notice this appeal was placed on the Board's docket and was not provided with the opportunity to submit argument. However, attorney Kowren had actual knowledge this appeal was placed on the Board's docket and of the time period to submit additional argument. Specifically, attorney Kowren received a copy of March 2024 VA correspondence that notified the Veteran his requested hearing for this appeal was scheduled for July 19, 2024, and then, discussed above, in May 2024, attorney Kowen subsequently withdrew the Veteran's hearing request. Accordingly, as attorney Kowren had actual knowledge this appeal was placed on the Board's docket and of the time period to submit additional argument, further administrative delay to send attorney Kowen a recognition letter advising him he is the Veteran's representative would serve no useful purpose at this juncture.

1. Entitlement to service connection for sleep apnea

The Veteran seeks service connection for sleep apnea. In his October 2020 application for benefits, the Veteran asserted service connection for sleep apnea was warranted as he was injured on active duty in October 1981.

This claim stems from an application for benefits received by VA on October 15, 2020, with a claim for sleep apnea.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 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).

The question for the Board is whether the Veteran's sleep apnea began during service or is related to an in-service injury, event, or disease. However, Board concludes that, while the Veteran has a diagnosis of sleep apnea, the evidence of record persuasively weighs against finding that it began during active service, is otherwise related to an in-service injury, event, or disease.

In this regard, as discussed above, in his October 2020 application for benefits, the Veteran asserted service connection for sleep apnea was warranted as he was injured on active duty in October 1981. However, as to in-service incurrence or aggravation of a disease or injury, review of the Veteran's service treatment records does not reflect diagnosis of sleep apnea, or complaints thereof. Specifically, the Veteran's October 1983 in-service examination, conducted in conjunction with his separation from service, did not document the existence of sleep apnea. Further, the Veteran's corresponding October 1983 Report of Medical History, documented he checked "no" to the existence of frequent trouble sleeping, but did check "yes" to the existence frequent or severe headaches and dizziness or fainting spells. His October 1983 Report of Medical History also documented he was a patient around December 8, 1982 for a car accident and that he had only occasional, not severe headaches, minimal dizzy spells with headaches sometimes, and acne.

Moreover, while the Veteran's service treatment records reflect he was involved in motor vehicle accident on December 8, 1982, these records do not reflect his sleep apnea was related to this in-service accident. For example,
nea. Further, the Veteran's corresponding October 1983 Report of Medical History, documented he checked "no" to the existence of frequent trouble sleeping, but did check "yes" to the existence frequent or severe headaches and dizziness or fainting spells. His October 1983 Report of Medical History also documented he was a patient around December 8, 1982 for a car accident and that he had only occasional, not severe headaches, minimal dizzy spells with headaches sometimes, and acne.

Moreover, while the Veteran's service treatment records reflect he was involved in motor vehicle accident on December 8, 1982, these records do not reflect his sleep apnea was related to this in-service accident. For example, a December 8, 1982 service treatment record documented that the Veteran reported he was in an auto accident and had bilateral arm pain. Another December 8, 1982 service treatment record documented the Veteran was involved in a motor vehicle accident this morning, that he lost control of his automobile on ice, that he hit head on with an oncoming vehicle, and that he had no loss of consciousness, had no focal signs, no significant medical problems and also documented that imaging of the left hand/wrist, right arm, and mandible found no fracture was seen. Another December 8, 1982 service treatment record documented the Veteran was admitted to the ward with a ruptured right bicep, mild contusion status post motor vehicle accident. Another December 8, 1982 service treatment record, a dental record, documented the Veteran was involved in a motor vehicle accident and complained of loose teeth and mandibular pain, and upon clinical examination, he had edema to the mandibular of the lip with some tissue laceration, that radiographs revealed no apparent fracture or pathology, and provided a provisional diagnosis of rule out mandibular fracture. This December 8, 1982 service treatment record also noted sutures were not recommended, but the Veteran was to apply ice today and use Vaseline or lip balm to keep tissue moist.

A December 10, 1982 service treatment record provided an assessment of status post motor vehicle accident, ruptured bicep, and noted the Veteran had no complaints except he wants to go home. Another December 10, 1982 service record documented the Veteran was feeling great and endorsed assessments of muscle strain and polycythemia, probable secondary to cigarette smoking. A January 1983 service treatment record documented that the Veteran was involved ina a motor vehicle accident on December 8, 1982 was admitted to the hospital and was discharged on December 10, 1928 and that his diagnosis was mild contusion, rupture right bicep.

Further, the Veteran's other service treatment records documented many other diagnoses and complaints. For example, a September 1979 service treatment record documented the Veteran sought a script refill for a rash. A March 1980 service treatment record documented the Veteran reported a skin problem. A December 1980 service treatment record documented the Veteran reported pain in his right lower abdomen. A March 1981 service treatment record documented skin treatment for acne. An August 1981 service treatment record documented the Veteran complained of pain in his pelvis. An October 1981 service treatment record documented the Veteran complained of a facial problem and was given refills of acne medication. A February 1982 service treatment record provided an assessment of acne vulgaris. A September 1982 service treatment record documented the Veteran complained of pain of his left hip. A December 1982 service treatment record documented the Veteran complained of pain and swelling of his right ankle. A September 1983 service treatment record provided an impression of a skin tag. An October 1983 service treatment record documented the Veteran had a papillouteous lesion of the lower abdomen.

The Board finds that if the Veteran had experienced sleep apnea, or related symptoms while in service, it would have been reasonable for it to have been documented during service, including during the October 1983 Report of Medical History, given other medical problems were identified. However, as discussed, there is no record of a diagnosis of sleep apnea, or complaints or treatment thereof. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist).

Further, the clinical treatment records show the Veteran was not diagnosed with sleep apnea until many years after his separation from service. Specifically, a July 2020 VA treatment record documented the Veteran complained of a sleep problem that his sleep was fragmented, that he tended to wake up in the middle of the night, that he snored and had daytime sleepiness, and that he tended to doze off in the middle of the day. The July 2020 VA treatment record also documented the Veteran had never been diagnosed with obstructive sleep apnea and provided an assessment of possible obstructive sleep apnea and a plan for an outpatient sleep study. A September 2020 private sleep study endorsed a diagnosis of severe obstructive sleep apnea. Also, a prior August 2017 VA mental disorders examination report documented the Veteran reported an average of eight hours of sleep, which is not indicative of sleep apnea. Also, an October 2019 VA treatment record documented the Veteran reported trouble falling or staying asleep, or sleeping too much for more than half the days, but he did not report other sleep apnea related symptoms, for example snoring or gasping for breath, and a diagnosis of sleep apnea was not endorsed. Thus, the Veteran's clinical treatment records reflect the Veteran complained of sleep apnea related symptoms, and was diagnosed with sleep apnea, at the earliest, in 2019 or 2020, many years after his separation from service in 1983.

Additionally, the Veteran has not asserted his sleep apnea onset during service. Rather, as discussed above, the Veteran has asserted his sleep apnea was because he was injured on active duty in October 1981. While the Board recognizes the Veteran's assertions that his sleep apnea is related to service, the Veteran has not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion on this basis. The issue is medically complex, as it requires specialized medical education to provide the requisite nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, as discussed above.

Additionally, while VA has not obtained a VA medical nexus opinion addressing the claim on a direct incurrence basis, the standard for VA to provide an opinion was not satisfied. In this instance, as discussed above there is no probative evidence that indicates the Veteran's sleep apnea is related to service. Thus, remand for an opinion to address whether the Veteran's sleep apnea on a direct incurrence basis is not warranted. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for sleep apnea is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder is remanded.

Under the AMA, the Board is bound by favorable findings of the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104. The December 2020 AOJ decision on appeal provided favorable findings as to this claim. Specifically, the Veteran was diagnosed with a disability as a November 2020 VA examiner endorsed a diagnosis of major depressive disorder, and the evidence shows that a qualifying event in service, as service treatment records show that the Veteran was treated for injuries stemming from a motor vehicle accident on December 8, 1982. Indeed, a November 2020 VA examiner endorsed a diagnosis of persistent depressive disorder, late onset with pure dysthymic syndrome, current severity, mild. Also, as discussed above, the Veteran's service treatment record documented he was involved in
able error. 38 C.F.R. § 3.104. The December 2020 AOJ decision on appeal provided favorable findings as to this claim. Specifically, the Veteran was diagnosed with a disability as a November 2020 VA examiner endorsed a diagnosis of major depressive disorder, and the evidence shows that a qualifying event in service, as service treatment records show that the Veteran was treated for injuries stemming from a motor vehicle accident on December 8, 1982. Indeed, a November 2020 VA examiner endorsed a diagnosis of persistent depressive disorder, late onset with pure dysthymic syndrome, current severity, mild. Also, as discussed above, the Veteran's service treatment record documented he was involved in a motor vehicle accident on December 8, 1982.

This claim stems from an application for benefits received by VA on October 15, 2020, with a claim for PTSD with major depressive disorder. This issue is remanded to correct a pre-decisional duty to assist error in terms of obtaining potentially relevant private medical records.

Specifically, this issue is remanded to correct a pre-decisional duty to assist error with respect to the failure to attempt to obtain potentially relevant private treatment records identified in the record prior to the December 2020 AOJ decision on appeal. In this regard, a November 2020 VA examiner documented the Veteran reported post-military mental health treatment, including ongoing counseling, which started February 2020. Also, an October 2020 private opinion from H. K., LCSW, affiliated with Dulles Psychological Services LLC, noted the Veteran had been a patient under her care since February 17, 2020.

However, no post service mental health treatment records, including records from Dulles Psychological Services LLC, from February 2020, were obtained or attempted to be obtained, and the failure of the AOJ to request such records is a pre-decisional duty to assist error and a remand is required to allow VA to obtain authorization and request these records. The Veteran is also advised he may provide this evidence (i.e. via mail or direct upload) directly to VA himself.

The Board also recognizes the Veteran submitted an October 2020 private opinion from H. K., LCSW, affiliated with Dulles Psychological Services LLC. The October 2020 private opinion endorsed diagnoses of PTSD and major depressive disorder and found it was "highly likely" the Veteran's "condition is a direct result of his head-on vehicle collision during his time of enlistment in the Military Service." The October 2020 private opinion documented the Veteran reported PTSD "symptoms which began prior to separating from the Military", that he "was deployed for three years overseas, there were sirens going off all the time and he had to be alert and ready to move at a moment's notice" that "[a]fter returning from deployment he was stationed in Texas, and on his way to work he was involved in a head on collision car accident with fatalities." Further, the clinician explained her conclusions because "[i]n my personal experience and in the medical literature it is known that traumatic brain injury can affect mental health."

However, the October 2020 private opinion does not address relevant evidence that conflicted with the proffered opinion, including the Veteran's October 1983 separation examination which found the Veteran's psychiatric system was clinically normal upon examination. Further, the Veteran's corresponding October 1983 Report of Medical History, documented he checked "no" to the existence of depression or excessive worry, frequent trouble sleeping, and nervous trouble of any sort. In addition, service connection for residuals of traumatic brain injury has been denied by VA. See October 2018 VA rating decision. Thus, the Board finds the October 2020 private opinion lacks probative value and is not sufficient to grant the claim at this time. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

VA regulations require that a medical diagnosis be competent. See 38 C.F.R. § 3.159(a). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer the medical diagnosis. Id. LCSWs are medical professionals who would not be considered competent to initially diagnosis PTSD for a lack of specialized education, training, expertise, and experience as envisioned by the VA Clinician's Guide and VA's Adjudication Manual, and there is no indication that the LCSW was under the supervision of a board-certified or board-eligible psychiatrist or a licensed doctorate-level psychologist. It is noted that LCSWs are not competent to conduct an INITIAL examination in which the disorder would be diagnosed
).

The Board also advises that, at this time, it intimates no opinion as to the credibility or probative value of any lay statements.

The matter is REMANDED for the following action:

Ask the Veteran to complete a VA Form 21-4142 for post service mental health treatment records from Dulles Psychological Services LLC, from February 2020. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. The Veteran should also be advised he may provide this evidence (i.e. via mail or direct upload) directly to his VA benefits file himself.

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Espinoza, 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.

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