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Court Wins

CCK Successfully Argues Board Error in Sleep Apnea (OSA) Case

Jenna Zellmer

January 12, 2020

Updated: June 20, 2024


Factual and Procedural History

The Veteran served on active duty in the United States Army from June to August 1979, June to August 1980, and December 1990 to June 1991, including service in the Persian Gulf War from January to May 1991.  In September 2016, he underwent a VA sleep study, after which he was diagnosed with obstructive sleep apnea (OSA), based on respiratory disturbances and oxygen desaturation above normal levels.  Following the sleep study, the VA physician advised him to try a continuous positive airway pressure (CPAP) machine, avoid tobacco and alcohol, control his weight and exercise regularly, and practice good sleep hygiene.  A year later, the Veteran sought VA disability benefits for OSA, which he related to his service in the Persian Gulf.  A VA Regional Office denied his claim the following month, and he responded by filing a Notice of Disagreement.  The Veteran argued that his OSA should be considered to arise from a medically unexplained chronic multisymptom illness (MUCMI) under 38 CFR § 3.317.  After being denied again by the Regional Office, the Veteran appealed to the Board of Veterans’ Appeals.  Once again, he asserted his belief that his OSA was a MUCMI under 38 CFR § 3.317.

In June 2018, the Board denied entitlement to benefits for the Veteran’s OSA.  The Board found that the Veteran’s OSA could not be considered a MUCMI because it was attributed to a known clinical diagnosis with a known pathophysiology and etiology.

CCK Argues for Classification of Sleep Apnea as MUCMI

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied entitlement to benefits for Obstructive Sleep Apnea.  CCK contended that the Board erroneously found that only chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome may be considered MUCMIs and that this error tainted its entire decision.  Furthermore, CCK argued that the Board misapplied the law as it relates to MUCMIs by considering whether OSA, as a general matter, has a conclusive etiology or pathophysiology, rather than considering the Veteran’s OSA specifically.  In response to the Board’s finding that Sleep Apnea has a conclusive etiology related to the Veteran’s weight, CCK asserted that there is no medical evidence connecting the two.  Therefore, the Board erred by relying on a medical dictionary definition of OSA to draw that conclusion.

Additionally, CCK argued that the Board erred in relying on a finding that no medical provider suggested that the Veteran’s OSA has an unexplained etiology.  Regarding that specific criteria for a MUCMI, CCK claimed that the Board overlooked evidence that he has fatigue, sleep disturbances, and symptoms that may be manifestations of a MUCMI.  Finally, CCK contended that the Board failed to address the reasonably raised theory of entitlement to benefits for OSA based on aggravation of that condition by his service-connected PTSD.

Court Remands Veteran’s Claim for Sleep Apnea

CCK argued, and the Court agreed, that the Board’s reasons or bases were inadequate.  The Court noted that the Board determined that the etiology of the Veteran’s OSA is his weight.  However, the Board did not explain how it reached that conclusion or point to any supportive medical evidence of record relating to the etiology of the Veteran’s OSA.  Furthermore, the Court concluded that the Board relied on the absence of evidence from medical providers that the Veteran’s OSA is the result of unexplained etiology of pathophysiology.  Here, the Court referenced CCK’s argument that because there was no medical reason why a doctor would be expected to comment on a particular matter, silence in the medical records with regard to that matter cannot be taken as substantive.  Because the Board did not explain why any of the medical providers would have been expected to discuss whether the Veteran’s OSA had a conclusive etiology, it did not establish the proper foundation for relying on the absence of evidence.  Ultimately, the Court remanded the Veteran’s claim back to the Board for readjudication.

To read the Court’s full decision, click here.

About the Author

Bio photo of Jenna Zellmer

Jenna joined CCK in January of 2014 as an appellate attorney, was named Managing Attorney in September of 2019, and now serves as a Partner at the firm. Her law practice focuses on representing disabled veterans at the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

See more about Jenna