SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran served from October 2006 to October 2010. The Veteran appeals the denial of service connection for obstructive sleep apnea, contending it arose during service and may be secondary to TBI. The Board reviewed evidence of record at the time of the AOJ decision and evidence submitted at the hearing. The Veteran reported sleep issues during service after a fall in 2009 and previously asserted sleep apnea was secondary to TBI. The Board considered the legal requirements for service connection, including nexus. Evidence included a favorable October 2019 VA opinion stating sleep apnea was at least as likely as not service-related, noting onset during service and continuity of treatment. However, a November 2019 VA opinion found the condition less likely than not service-related, attributing it to obesity, which had significantly increased since service. This opinion noted the absence of sleep apnea diagnosis or treatment in service records, and that snoring/gasping are not pathognomic. The Board found the evidence in equipoise regarding whether sleep apnea arose during service, particularly given the Veteran's obesity onset during service. Applying the benefit of the doubt, service connection for obstructive sleep apnea was granted.

Rationale

Favorable October 2019 VA opinion linking sleep apnea to service; Unfavorable November 2019 VA opinion attributing sleep apnea to obesity; Evidence found in equipoise regarding onset during service

Full Decision Text

Citation Nr: A26040651
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210629-169039
DATE: April 30, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea is granted.

FINDING OF FACT

The Veteran's obstructive sleep apnea arose during active service.  

CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 2006 to October 2010.

In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on December 10, 2024. 

Therefore, the Board may only consider the evidence of record at the time of the June 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302 (a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302 (a), 20.801. 

Entitlement to service connection for obstructive sleep apnea.

The Veteran contends that his sleep apnea is due to active service.  Specifically, the Veteran testified that he began having sleep issues during service after a fall in 2009.  See December 2024 Hearing Transcript.  The Veteran had previously asserted that his sleep apnea was secondary to his service-connected disabilities, to include traumatic brain injury (TBI).  Id.  

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

To establish service connection on a secondary basis, the evidence must 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)(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Board notes that obesity is not considered a disease or disability for VA purposes and is not subject to service connection.  See Marcelino v. Shulkin, 29 Vet. App. 155, 156 (2018).  However, obesity may be an intermediate step between a service-connected disability and a current disability that may be service-connected on a secondary basis.  38 C.F.R. § 3.310; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020).

As an initial matter, the June 2021 rating decision found that new and relevant evidence had been received to readjudicate the claim of service connection for obstructive sleep apnea.  This is a favorable finding by the agency of original jurisdiction (AOJ), and the Board will proceed to the address the claim on the merits.  See 38?U.S.C. § 5104A; 38?C.F.R. § 3.104 (c).

The June 2021 rating decision also found a current disability of obstructive sleep apnea.  Upon separation from service, the Veteran reported frequent trouble sleeping.  Thus, the question becomes whether the current disability is related to service.  On this question there are probative opinions in favor of and against the claim. 

The evidence in favor of the claim includes an October 2019 VA medical opinion.  They opined that the Veteran's sleep apnea was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness.  On reaching this rationale, the examiner noted
U.S.C. § 5104A; 38?C.F.R. § 3.104 (c).

The June 2021 rating decision also found a current disability of obstructive sleep apnea.  Upon separation from service, the Veteran reported frequent trouble sleeping.  Thus, the question becomes whether the current disability is related to service.  On this question there are probative opinions in favor of and against the claim. 

The evidence in favor of the claim includes an October 2019 VA medical opinion.  They opined that the Veteran's sleep apnea was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness.  On reaching this rationale, the examiner noted that the Veteran had no issues related to the claimed sleep disorder prior to military service.  Onset of the condition was during service, documented in the service medical records.  There is evidence of current, chronic, and continuous treatment and care and a nexus has been established.  

The evidence against the claim includes a November 2019 VA medical opinion to address conflicting medical evidence.  They opined that the Veteran's obstructive sleep apnea is less likely than not caused by or the result of an illness or event while on active duty.  A review of the service treatment records shows no evidence of the diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty.  Snoring, unrestful sleep, "gasping", "trouble sleeping", and insomnia are not pathognomic for sleep apnea.  Moreover, obesity is the best documented risk factor for obstructive sleep apnea.  The prevalence of obstructive sleep apnea progressively increases as the body mass index and associated markers increase.  The examiner noted that the Veteran is obese and has gained over 200 pounds since active duty.  Therefore, his obesity is the cause of his obstructive sleep apnea, and the October 2019 medical opinion is in error.  

The Board notes that the Veteran had frequent limitations of physical activity during service and weighed more at the end of service.  Even if the Veteran's obesity is the main cause of his sleep apnea, it appears to have begun during active service.  Therefore, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current obstructive sleep apnea arose in service.  Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

Paul R. Casey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cochran, Laura

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.