Entitlement to service connection for sleep apnea is granted.

Citation Nr: A26069944 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 260325-640603 DATE: July 30, 2026 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea resulted from service-connected coronary artery disease, status post coronary artery bypass graft, with myocardial infarction. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.? REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a March 2026 decision by a Department of Veterans Affairs (VA) Regional Office (RO/AOJ). The Veteran appealed by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) on March 25, 2026. The Veteran elected the Hearing docket. The Veteran testified before the undersigned Veterans Law Judge on June 5, 2026. A transcript of that video hearing is in the claims file. The Board may only consider the evidence of record at the time of the decision on appeal as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing (i.e., September 3, 2026). 38 C.F.R. § 20.302(a). Evidence of record specifically identified by the Veteran or representative in the June 5, 2026, hearing is likewise considered "submitted" during the evidence submission window. See Cash v. Collins, 166 F.4th 1046, 1051 (Fed. Cir. 2026). If evidence was submitted either (1) during the period after the rating decision and prior to the Board Hearing, or (2) more than 90 days following the hearing, the Board may not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. While 90 days following the June 5, 2026, hearing has not yet lapsed, at the time of the hearing, the Veteran clearly testified that he was formally waiving the right to submit evidence during the 90 days following. 38 C.F.R. § 20.300(b). The Veteran is thus not being denied any due process rights. Moreover, the evidence of record is adequate for a decision and sufficient to grant the claim. ? Entitlement to Service Connection 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. §§ 1110, 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). Service connection may be granted on a secondary basis for a disability that is due to or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead holding a "but for" causation or aggravation is enough to show entitlement to secondary service connection). In making all determinations, the Boad must fully consider the lay assertions of record. A layperson is competent to report on the onset of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding that the Board must only discuss the evidence which is relevant to the issues on appeal). A Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise. Evidence is in approximate balance when the evidence in favor of and opposing the Veteran's claim is found to be almost exactly or nearly equal. Lynch v. McDonough, 21 F.4th 776, 780 (Fed. Cir. 2021). ? Service treatment records (STRs) document pharyngeal and respiratory airway injury or disease. STRs are negative for complaints, treatment, or diagnosis of obstructive sleep apnea. There is likewise no evidence that the Veteran was diagnosed as having obstructive sleep apnea within a year of service discharge, that he experienced symptoms attributed to obstructive sleep apnea since service, or that his obstructive sleep apnea is otherwise etiologically related to his active service. Consequently, service connection on a direct or presumptive basis or the basis of continuity is not warranted. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran does not argue the contrary. Rather, he contends that he is entitled to service connection for sleep apnea as secondary to service-connected cardiovascular and cardiac disabilities, hypertension and coronary artery disease, status post coronary artery bypass graft, with myocardial infarction, to include complications of surgery for treatment of his cardiac disability. The Veteran has a current diagnosis of sleep apnea and his service-connected disabilities include coronary artery disease, status post coronary artery bypass graft, with myocardial infarction, and hypertension. 38 C.F.R. § 3.104(c). These elements of secondary service connection are met. 38 C.F.R. § 3.310. The remaining question is whether his current sleep apnea resulted from service-connected disability, to include treatment therefore. The Veteran testified that his sleep apnea is secondary to his service-connected hypertension or coronary artery disease and evidenced by onset of symptoms including fatigue following a February 2023 coronary artery bypass graft surgery. He related decreased energy, low oxygen, and fatigue to sleep apnea, indicating that a treating medical provider had opined as much, and that this positive evidence had not been considered. The Veteran described concerns of sleep apnea expressed by a treating cardiologist prompted by complaints of fatigue after cardiac surgery. He testified that this fatigue, and decreased energy, had not been present previously, prior to cardiac surgery. The Veteran is competent to describe observable symptoms, when he observed them, and medical facts, concerns, or history conveyed to him. ? In a February 2026 private opinion, the Veteran's treating provider, board-certified in cardiology, opined that it was "more than likely" that the Veteran's obstructive sleep apnea is caused by diaphragmatic paralysis from phrenic nerve injury, a direct complication of the coronary artery bypass graft surgery required by the Veteran's service-connected coronary artery disease. The provider explained that phrenic nerve injury is not only iatrogenic in nature, i.e., the result of illness related to medical treatment, but a well-documented complication of coronary artery bypass graft surgery specifically. The provider reasoned that diaphragmatic paralysis caused the Veteran's obstructive sleep apnea by way of ventilatory instability and decreased lung volume, particularly when supine, resulting in increased upper airway collapsibility. A March 2026 VA examiner opined that sleep apnea was less likely than not due to or the result of the Veteran's service-connected hypertension or cardiac disability. The examiner reasoned that sleep apnea causes increased risk of hypertension and cardiac disease, but coronary artery disease and hypertension are not causes of sleep apnea. Addressing whether phrenic nerve injury resulting from treatment of the Veteran's service-connected cardiac disability caused his sleep apnea, the examiner's review of medical literature showed sleep apnea can be caused by pharyngeal nerve injury, but that review did not show the same for phrenic injury. The Board finds the positive and negative evidence is in approximate balance-not exactly equal, but nearly-with regard to the likelihood of a causal relationship between the Veteran's currently diagnosed sleep apnea and his service-connected coronary artery disease status post coronary artery bypass graft with myocardial infarction. The record includes two opinions offered by competent medical experts relating pertinent medical history to medical treatise evidence, each clearly explaining how differing conclusions were reached. One is positive and one is negative; both are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board resolves reasonable doubt in the Veteran's favor to find that his currently diagnosed sleep apnea resulted from treatment for service-connected coronary artery disease, status post coronary artery bypass graft, with myocardial infarction. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for sleep apnea is thereby warranted. See also Spicer, 61 F.4th 1360. The claim for entitlement to service connection for sleep apnea is thus granted. 38 C.F.R. § 3.310. The Board considered evidence and argument concerning other theories, to include of an aggravating relationship. The record does not include a VA medical opinion squarely addressing this theory. The private opinion is not without flaw either. However, as the record is sufficient to establish service connection secondary to service-connected cardiac disability on a causative basis, further development or discussion is not an efficient use of government resources. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Dwyer, Associate 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.