SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served in the Army across multiple periods between August 2006 and August 2023, appeals the denial of an increased rating for sleep apnea and the dismissal of an issue regarding an earlier effective date for PTSD. The Board denied the sleep apnea claim, finding the veteran did not meet the criteria for a rating higher than 50 percent, as the evidence did not indicate chronic respiratory failure, cor pulmonale, or the need for a tracheostomy, beyond the CPAP machine already supporting the 50 percent rating. The Board dismissed the effective date issue for PTSD, citing a prior, final Board decision from January 2025 that addressed the same issue with the same evidentiary record. The Board determined that re-adjudicating this matter would undermine the finality of its previous decision, as no new evidence was submitted after that decision and before the current appeal period closed. The Veteran's claims were therefore denied or dismissed.

Rationale

Sleep apnea rated under DC 6847; Criteria for >50% rating not met; No indication of chronic respiratory failure, cor pulmonale, or tracheostomy

Full Decision Text

Citation Nr: A26040482
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250709-563081
DATE: April 30, 2026

ORDER

Entitlement to an initial rating in excess of 50 percent for sleep apnea is denied.

Entitlement to an effective date earlier than December 16, 2017 for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed.

FINDINGS OF FACT

1. The Veteran's sleep apnea required the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine, but his symptoms did not more nearly approximate chronic respiratory failure with carbon dioxide retention or cor pulmonale, nor did they require tracheostomy.

2. In a January 2025 decision issued under the legacy appeal system, the Board of Veterans' Appeals (Board) determined the criteria for an effective date earlier than December 16, 2017 were not met for the grant of service connection for PTSD. That decision is final and binding with respect to the effective date issue currently before the Board.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 50 percent for sleep apnea were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code (DC) 6847.

2. There being no longer any justiciable case or controversy, the issue of entitlement to an effective date earlier than December 16, 2017 for the grant of service connection for PTSD is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the Army from August 2006 to October 2007, from March 2011 to February 2012, from January 2021 to February 2021, and from January 2022 to August 2023.

These matters come before the Board on appeal from an April 2025 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 50 percent rating for sleep apnea and denied an earlier effective date for the grant of service connection for PTSD. The Veteran had filed a Supplemental Claim in January 2025 in response to a January 2024 rating decision which implemented a January 2024 Board decision granting an increased initial 50 percent rating for sleep apnea prior to April 7, 2015.

In July 2025, the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), electing the Direct Review docket. Accordingly, the Board may only consider the evidence of record at the time of the April 2025 rating decision on appeal. See 38 C.F.R. § 20.301. Any evidence submitted after the RO 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 

Regarding the claims decided herein, neither the Veteran nor his lawyer raised any issues with the duty to notify or duty to assist. 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).

1. Entitlement to an initial rating in excess of
 3.159. 

Regarding the claims decided herein, neither the Veteran nor his lawyer raised any issues with the duty to notify or duty to assist. 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).

1. Entitlement to an initial rating in excess of 50 percent for sleep apnea is denied.

The Veteran seeks a rating in excess of 50 percent for his sleep apnea. For the following reasons, the Board finds his claim must be denied.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the claimant, as well as the entire history of the claimant's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's sleep apnea symptoms are rated under DC 6847. 38 C.F.R. § 4.97. Under DC 6847, a 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as a CPAP machine. The maximum 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Id.

In this case, the relevant evidence shows the criteria for a rating in excess of 50 percent under DC 6847 were not met. The Veteran received a VA Compensation and Pension (C&P) respiratory examination in April 2025. The report is negative (as are the Veteran's treatment records during the appeal period) for any indication that his sleep apnea caused chronic respiratory failure with carbon dioxide retention or cor pulmonale or required a tracheostomy. The C&P report, in particular, includes the examiner's notation that these symptoms/treatments were not present. Rather, the evidence of record reflects (as established by the Board in its January 2024 decision which granted an increased initial rating of 50 percent for sleep apnea) that the Veteran required an assistive breathing device, or CPAP machine, throughout the appeal period, which is consistent with his assigned 50 percent rating.

Based on a consideration of the above evidence, including the medical evidence and the lay statements of record, the Board finds an initial rating in excess of 50 percent is not warranted. The Veteran does not contend, and the evidence does not indicate, that he experienced chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that he required a tracheostomy. To the extent the Veteran complained of other respiratory symptoms during the appeal period, the Board is mindful that pulmonary disabilities will be assigned a single rating under the DC reflecting the predominant disability, i.e., the one resulting in the higher rating. 38 C.F.R. § 4.96(a). Here, the predominant disability is the Veteran's sleep apnea for which he was correctly assigned a 50 percent rating. 

Neither the Veteran nor his lawyer raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming the Board is not required to address issues
acheostomy. To the extent the Veteran complained of other respiratory symptoms during the appeal period, the Board is mindful that pulmonary disabilities will be assigned a single rating under the DC reflecting the predominant disability, i.e., the one resulting in the higher rating. 38 C.F.R. § 4.96(a). Here, the predominant disability is the Veteran's sleep apnea for which he was correctly assigned a 50 percent rating. 

Neither the Veteran nor his lawyer raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming the Board is not required to address issues unless they are specifically raised by the record). The claim for an increased initial rating is denied.

2. Entitlement to an effective date earlier than December 16, 2017 for the grant of service connection for PTSD is dismissed.

The RO granted service connection for PTSD in an April 2018 rating decision, assigning an effective date of December 16, 2017. In an April 2019 decision issued under the legacy appeal system, the Board granted service connection for sleep apnea. The RO subsequently issued a rating decision implementing the Board's decision and assigning an initial 30 percent rating for sleep apnea effective April 23, 2014, one year prior to receipt of the Veteran's claim.

The Veteran continuously pursued an appeal of the initial rating, and in a January 2024 decision, the Board determined the Veteran was entitled to an increased initial rating of 50 percent for the entire rating period.

On January 3, 2025, the RO received a Supplemental Claim from the Veteran in which he stated the following:

This is not a new claim. This is an APPEAL of the 1/29/24 BVA decision. [the Veteran] seeks entitlement to a higher initial rating for obstructive sleep apnea (OSA), to include secondary service connection for PTSD. Per Bailey v. Wilkie, the scope of the veteran's April 23, 2014, claim for benefits for OSA includes entitlement to complications of OSA. Bailey v. Wilkie, 33 Vet. App. 188, 201 (2021). As new and relevant evidence, [the Veteran] offers the attached medical opinion by [Dr. S. D. P.], who opines that the veteran's OSA, at least as likely as not, contributed to his development of PTSD. Based on the overall record and attached evidence, service connection for PTSD as secondary to OSA is warranted, effective no later than April 23, 2014.

In a subsequent decision issued under the legacy appeal system on January 8, 2025, the Board addressed the arguments noted above, particularly the arguments related to Bailey v. Wilkie, and denied entitlement to an earlier effective date for service connection for PTSD. There is no indication the Veteran appealed the January 2024 or 2025 Board decision to the United States Court of Appeals for Veterans Claims (Court), nor that he requested reconsideration of that decision specifically. Thus, the January 2024 and 2025 Board decisions are final. See 38 C.F.R. § 20.1100.  

The Board finds that the January 2025 Board decision is final and binding with respect to the effective date issue raised in this appeal. Of note, by statute a final Board decision is binding based on evidence on file on the date stamped and may not be revised on the same factual basis. 38 U.S.C. § 7104; see also 38 C.F.R. § 20.1303 ("previously issued Board decisions will be considered binding only with regard to the specific case decided"). The only way to vitiate the finality of such a decision is via a motion alleging clear and unmistakable error (CUE) in the prior final decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006).

In this case, the January 2025 legacy Board decision involved a similar evidentiary record as the instant appeal. The only difference is that the current appeal stretched until the April 2025 rating decision while the January 2025 Board decision review period ended with the decision's issuance. However, the Veteran did not submit any new evidence regarding the effective date of PTSD from the date of the January 2025 Board decision until the date the April 2025 rating decision (which marked the end of the reviewable evidentiary window in this appeal) was issued. The Veteran submitted a copy of a February 2022 medical opinion, but that opinion was previously of record and was considered by the Board in its January 2025 decision.

The Board returns to the statutory requirement that a final Board decision is binding
 similar evidentiary record as the instant appeal. The only difference is that the current appeal stretched until the April 2025 rating decision while the January 2025 Board decision review period ended with the decision's issuance. However, the Veteran did not submit any new evidence regarding the effective date of PTSD from the date of the January 2025 Board decision until the date the April 2025 rating decision (which marked the end of the reviewable evidentiary window in this appeal) was issued. The Veteran submitted a copy of a February 2022 medical opinion, but that opinion was previously of record and was considered by the Board in its January 2025 decision.

The Board returns to the statutory requirement that a final Board decision is binding based on evidence on file on the date stamped and may not be revised on the same factual basis. 38 U.S.C. § 7104; see also 38 C.F.R. § 20.1303. Here, a re-adjudication on the merits under the AMA would violate that requirement because the instant decision is limited to the same factual record as the January 2025 Legacy decision. The Board would be repeating itself, and in doing so undermining the finality of its own decisions.  

The Board is aware that there are distinct appeal streams addressing the same issue. This decision does not imply a jurisdictional defect in the Board's ability to review the issue on appeal. Even so, the Board finds that, under these unique circumstances, re-adjudicating the merits of the effective date issue would constitute an impermissible attack on the finality of the January 2025 Board decision.

Accordingly, the Board finds its January 2025 decision issued under the legacy appeal system is final and binding as to the specific issue of whether an effective date earlier than December 16, 2017 is warranted for the grant of service connection for PTSD. The January 2025 Board decision is final and may not now be revised on the same factual basis. 38 U.S.C. § 7104; 38 C.F.R. § 20.1303. The appeal must therefore be dismissed. See 38 U.S.C. § 7105.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Ryan, 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.