SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served from May 2019 to July 2023, appeals the denial of an initial compensable rating for obstructive sleep apnea and the remand of a claim for headaches. The Board denied the sleep apnea claim, finding that the evidence did not support a rating higher than zero percent. While the veteran reported symptoms like snoring and daytime sleepiness, the VA examination and subsequent clarification indicated these did not meet the criteria for persistent daytime hypersomnolence or require a breathing assistance device. The Board afforded higher probative value to the VA examiner's opinion, which concluded the reported tiredness did not align with the diagnostic criteria for hypersomnolence, outweighing the veteran's lay statements. The Board also considered an article on hypersomnolence but found it insufficient without accompanying medical opinion or personal context. The claim for headaches was remanded due to a pre-decisional duty to assist error. The August 2024 VA examination report was deficient, lacking details on the frequency and impact of medication for headaches and the veteran's own description of symptoms. The Board will afford the veteran a new examination to gather this information.

Rationale

Evidence does not show need for breathing assistance device (CPAP) or tracheostomy.; Evidence does not show chronic respiratory failure.; Probative evidence does not support persistent daytime hypersomnolence.; Veteran's lay statements of tiredness outweighed by VA examiner's opinion on hypersomnolence.

Full Decision Text

Citation Nr: A26040983
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250529-556339
DATE: April 30, 2026

ORDER

Entitlement to an initial compensable rating for obstructive sleep apnea, is denied. 

REMANDED

Entitlement to an initial compensable rating for headaches, is remanded.

FINDING OF FACT

The probative evidence of record persuasively weighs against finding the obstructive sleep apnea has required a tracheostomy, has resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale; has required the use of an assistive breathing device such as a continuous airway pressure machine (CPAP); has manifested with persistent daytime hypersomnolence; or has manifested with symptomatology resulting in a level of impairment that more closely approximates the disability picture contemplated by the rating criteria for a compensable disability rating. 

CONCLUSION OF LAW

The criteria for an initial compensable rating for obstructive sleep apnea are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6847.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran has a period of active service from May 2019 to July 2023.

In May 2025, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) where Board review of matters addressed in rating decisions issued on February 2025 and April 2025 by the Department of Veterans Affairs (VA) Regional Office (RO) was requested. 

In the direct review docket, the Board may only consider the evidence of the record at the time of adjudication. 38 C.F.R. § 20.301. It is observed that the February 2025 rating decision adjudicated the Veteran's request for Higher Level Review of  an October 2024 rating decision initially adjudicating the headaches disability. As such, any evidence associated with the claims file after October 2024 rating decision addressing the headaches, and after the April 2025 rating decision regarding the sleep apnea has not been considered in this decision. In the VA Form 10182, the Veteran waived the time provided to change dockets, and requested the Board to issue a decision as soon as possible. 

1. Entitlement to an initial compensable rating for obstructive sleep apnea.

The Veteran seeks an initial compensable rating for his obstructive sleep apnea (sleep apnea). 

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Pt. 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Obstructive sleep apnea is rated under Diagnostic Code 6847.  Under this Diagnostic Code, a noncompensable (zero percent) evaluation is warranted for sleep apnea that is asymptomatic but with documented sleep disorder breathing.  A 30 percent evaluation is available for sleep apnea that manifests with persistent daytime hypersomnolence. A 50 percent rating is available when the condition requires the use of breathing assistance devices such as a CPAP.  A 100 percent evaluation is available for sleep apnea that results in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that requires a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. The term "persistent" is not defined in the rating criteria. Merriam-Webster defines persistent as "existing for a long or longer than usual time or continuously. See "persistent," Merriam-Webster Online Dictionary (last accessed April 8, 2026). The term hypers
 that manifests with persistent daytime hypersomnolence. A 50 percent rating is available when the condition requires the use of breathing assistance devices such as a CPAP.  A 100 percent evaluation is available for sleep apnea that results in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that requires a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. The term "persistent" is not defined in the rating criteria. Merriam-Webster defines persistent as "existing for a long or longer than usual time or continuously. See "persistent," Merriam-Webster Online Dictionary (last accessed April 8, 2026). The term hypersomnolence is briefly addressed below. 

The April 2025 rating decision continued the noncompensable rating assigned for the sleep apnea under DC 6847. At the time the decision was issued the claims file included the Veteran's service treatment records (STRs), VA examination reports and medical opinions, as well as VA medical records.

The Veteran's STRs document his reports of issues with sleep, such as snoring, excessive daytime sleepiness, and insomnia. He underwent a sleep study and was diagnosed with mild obstructive sleep apnea. See STRs from December 2022 and January 2023. 

A VA examination report pertaining sleep apnea was associated with the claims file in January 2023. The VA examination report included the Veteran's reports that the condition began in 2022, with symptoms of waking up 3 to 5 times per night, and that his current symptom was being unable to fall back asleep. The Veteran described the impact of the condition as being too tired to work or drive. The condition was not noted to require the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. The VA examiner did not note any other findings, signs, or symptoms associated with the condition such as persistent daytime hypersomnolence. See January 2023 VA examination report. This examination report includes information regarding the Veteran's symptoms and the VA examiner's findings at the time of the examination. As such, and considering the additional medical opinion of November 2024 (discussed below), the report is considered adequate to adjudicate the instant claim and it is afforded high probative value.

The available VA medical records note the Veteran was advised as to the risks of untreated sleep apnea during a routine check-up, although he did not report any additional concerns or symptoms associated with the condition during the visit. The medical note indicates the Veteran was to be referred to the sleep clinic. See VA medical records from June 2024. VA medical records from July 2024 also note the Veteran reported he would be leaving that month for an extended stay in Thailand. See VA medical records from July 2024 and from August 2024. 

In November 2024, a VA medical opinion clarifying the information in the January 2023 VA examination report was associated with the claims file. In this opinion, the VA examiner explained that persistent daytime hypersomnolence involves severe manifestation of daytime sleepiness, including a high risk of falling asleep unexpectedly. The examiner explained that while the Veteran had reported being too tired to work or drive at the time of the VA examination, that there was no indication he was falling asleep involuntarily during activities that demand alertness, which is a hallmark of hypersomnolence. As such, the VA examiner concluded that although the Veteran's reports had been considered, the reported tiredness did not align with the diagnostic criteria of persistent daytime hypersomnolence. See VA medical opinion associated with the claims file in November 2024. This medical opinion includes sufficient information to adjudicate the instant claim as the opinion considers the Veteran's lay statements and explains why a medical finding of persistent daytime hypersomnolence was not made or documented in the VA examination report. As such, this medical opinion is considered adequate and is afforded high probative value for adjudication purposes. 

In December 2024, the Veteran submitted an article pertaining hypersomnolence. The article provides general information regarding the term hypersomnolence, including that the term can be used to refer to excessive sleepiness, as well as an abnormally high likelihood of drowsiness when sleep is not desired or anticipated. See article associated with the claims file in December 2024. The information in the article has been considered. However, the article does not address the Veteran's particular/personal circumstances or medical history, nor was it accompanied by a medical opinion. As such, this article has been afforded little probative value for adjudication purposes and it is insufficient to establish the existence of hypersomnolence in this particular case.

Following review of the available evidence, the Board finds the most probative evidence
olence. The article provides general information regarding the term hypersomnolence, including that the term can be used to refer to excessive sleepiness, as well as an abnormally high likelihood of drowsiness when sleep is not desired or anticipated. See article associated with the claims file in December 2024. The information in the article has been considered. However, the article does not address the Veteran's particular/personal circumstances or medical history, nor was it accompanied by a medical opinion. As such, this article has been afforded little probative value for adjudication purposes and it is insufficient to establish the existence of hypersomnolence in this particular case.

Following review of the available evidence, the Board finds the most probative evidence of record persuasively weighs against the claim for an initial compensable disability rating for sleep apnea.

As noted above, DC 6847 provides a compensable disability ratings for sleep apnea when the condition: manifests with persistent daytime hypersomnolence; requires the use of a breathing assistive device such as a CPAP; or when it requires a tracheostomy or results in chronic respiratory failure. See 38 C.F.R. § 4.97, DC 6847. In this case, the available medical evidence does not show the Veteran has required the use of an assistive breathing device such as a CPAP machine or a tracheotomy to manage the condition. The medical evidence also does not show the condition has resulted in chronic respiratory failure. Further, the probative evidence of record does not support finding the sleep apnea has manifested with persistent daytime hypersomnolence. 

In this regard, the Veteran's lay statements have been carefully considered, including his report of being too tired to work or drive due to his sleep apnea. As a lay person, the Veteran is competent to describe his symptoms. However, the information in the claims file does not support finding that the symptom of tiredness more closely approximates the level of impairment contemplated by the criteria for a compensable rating under DC 6847, which requires as a minimum hypersomnolence (understood to refer to excessive sleepiness or drowsiness, and falling asleep involuntarily) that is persistent (existing for a long or longer than usual time or continuously). To the extent the Veteran believes his symptom of tiredness is consistent with hypersomnolence, such lay contention is outweighed in probative value by the competent medical evidence. Importantly, whether the reported symptom is consistent with a medical finding of hypersomnolence, is a medical determination that requires medical expertise the Veteran is not shown to possess. Further, the available medical records do not document a finding of hypersomnolence. Moreover, the Veteran's lay report was considered by the subscriber of the November 2024 medical opinion, who explained that the reported symptoms are not consistent with the medical finding of hypersomnolence. Higher probative value has been afforded to the VA examiner's determination regarding hypersomnolence, and lower probative value has been afforded to the lay evidence regarding tiredness, for purposes of determining whether the reported symptom is or not consistent with a medical finding of hypersomnolence.

The Board has also considered the article submitted by the Veteran in support of his claim. The information in the article is consistent with the information provided by the VA examiner in the November 2024 medical opinion regarding hypersomnolence. As such, the article on its own, is insufficient to establish the existence of hypersomnolence in this particular case in view of the more probative medical evidence of record, particularly the November 2024 medical opinion addressing the Veteran's personal circumstances, and succinctly explaining why in the professional opinion of its subscriber the Veteran's sleep apnea does not manifest with hypersomnolence.  As such, while the Veteran's lay statements have been considered, the lay evidence is outweighed in probative value by the probative medical evidence of record which persuasively weighs against finding the sleep apnea has manifested with persistent daytime hypersomnolence or with a level of impairment that more closely approximates the disability picture contemplated by the criteria for a compensable rating under DC 6847. 

In sum, for the reasons explained above, the available probative evidence does not support finding the sleep apnea has manifested with persistent daytime hypersomnolence or with any other manifestation consistent with a compensable disability rating under DC 6847. Rather, the probative evidence of record persuasively weighs against such conclusion. As such, an initial compensable rating for sleep apnea under DC 6847 is not warranted and the instant claim is denied. The benefit of the doubt doctrine has been considered. However, as the probative evidence of record persuasively weighs against finding the sleep apnea has manifested with a level of severity consistent with
 the disability picture contemplated by the criteria for a compensable rating under DC 6847. 

In sum, for the reasons explained above, the available probative evidence does not support finding the sleep apnea has manifested with persistent daytime hypersomnolence or with any other manifestation consistent with a compensable disability rating under DC 6847. Rather, the probative evidence of record persuasively weighs against such conclusion. As such, an initial compensable rating for sleep apnea under DC 6847 is not warranted and the instant claim is denied. The benefit of the doubt doctrine has been considered. However, as the probative evidence of record persuasively weighs against finding the sleep apnea has manifested with a level of severity consistent with a compensable disability rating under the criteria established by DC 6847, the benefit of the doubt doctrine is not for application. 

REASONS FOR REMAND

1. Entitlement to an initial compensable rating for headaches is remanded.

The Veteran seeks an initial compensable rating for his headaches.

The decision on appeal assigned an initial noncompensable (zero percent) rating for the service-connected headaches under the rating criteria provided by diagnostic code (DC) 8100.

DC 8100 provides a zero percent rating for migraines with characteristic prostrating attacks averaging less than one in 2 months over the last several months.  A 10 percent rating is available for migraines with characteristic prostrating attacks averaging one every two months over the last several months.  A 30 percent rating is available for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months.  A 50 percent rating is available for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, Diagnostic Code 8100.   The use of medications is not contemplated in Diagnostic Code 8100. As such, a higher rating may not be denied based on the ameliorative effects of medication.  See Jones v. Shinseki, 26 Vet. App. 56 (2012).  

Following review of the available evidence, the Board finds the instant matter must be remanded to correct a pre-decisional duty to assist error. 

In relevant part, the decision on appeal assigned an initial noncompensable rating for the headaches finding that over a period of several months the condition did not manifest with at least 1 prostrating attack every two months on average. In so finding, the decision relied at least in part on an August 2024 VA examination report. 

The August 2024 VA examination report for headaches noted the Veteran used medication for his condition on an as needed basis. However, no additional information was included in the report regarding the use medication such as the impact of the medication on the headaches- if any, or how often/frequently on average would the Veteran use medication for his headaches. Additionally, the examination report does not include information as to the Veteran's own description of his medical history pertaining his headaches, such as how he described his headaches (in his own words), any symptoms described, how frequently do the headaches occur, and/or whether the headaches interfere with any activity. See August 2024 VA examination report. Due to these deficiencies, and without additional information, the August 2024 VA examination report does not include sufficient information to assess the severity of the disability for rating purposes under the criteria established by DC 8100, and it is considered inadequate on its own to adjudicate the claim. 

In view of these circumstances, a pre-decisional duty to assist error occurred when additional information or a more complete examination report was not obtained before the claim was adjudicated. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds the instant matter must be remanded to afford the Veteran a new examination that includes information as to the Veteran's own description of the condition as well as the impact, if any, the medication has on his headaches.

The matter is REMANDED for the following action:

1. Afford the Veteran a new VA examination to assess the severity of his service-connected headaches. To the extent feasible, the VA examiner is requested to obtain from the Veteran a description of the symptoms and/or impairments he experiences during a headache episode, how often such episodes occur on average, as well as the impact, if any, the medication has on them. The information obtained from the Veteran should be clearly documented in the VA examination report.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Gonzalez-Maldonado, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is