Skip to main content
For Immediate Help: 800-544-9144
Court Wins

CCK Successfully Appeals Denial of Service Connection to Obstructive Sleep Apnea

Michael Lostritto

August 2, 2019

Updated: November 20, 2023


Case Summary

The Veteran served honorably in the United States Army from October 9, 1985 to October 19, 2000, as well as from December 2002 to February 2004.  His service included seven years overseas in Iraq, Kuwait, Qatar, Egypt and Italy.  Upon discharge, the Veteran received the Army Commendation Medal for high performance while on duty.

The Veteran first filed for service connection for post-traumatic stress disorder (PTSD) on June 30, 2008. The claim was denied due to lack of supporting evidence.  The Veteran had an Army memorandum from February 2004 stating he felt tired all the time and believed he had a sleeping disorder.  He also submitted service medical records from 2005 stating he wakes up feeling unrested and experiences problems going to sleep as well as nightmares associated with deployment to Iraq.  In 2006, he filed for service connection for obstructive sleep apnea (OSA) while refiling for PTSD.  Months later, the Veteran was granted service connection for PTSD but was denied OSA due to lack of evidence.

In October of 2009, the Veteran filed for an increased rating for PTSD and to reopen his claim for OSA.  Treatment notes documented his sleeping problems and in 2009, he was given a CPAP machine. Additionally, he obtained a positive nexus opinion citing studies that show a correlation between PTSD and OSA, and also noting that medications for PTSD are known to exacerbate symptoms of OSA.  After multiple denials at the regional office level, he appealed to the Board of Veterans’ Appeals in 2012.  In April 2014, the Board granted the increased rating for PTSD as well as a total disability rating based on individual unemployability (TDIU), but remanded OSA back to the Regional Office for further development.  In October 2016, the Veteran submitted additional argument in support of his claim.  In January 2017, the Board issued a remand for OSA secondary to PTSD for the Regional Office to get an examiner to opine as to whether his PTSD aggravates his OSA.

In July of 2017 the regional office issued a Supplemental Statement of the Case continuing the denial of obstructive sleep apnea as secondary to PTSD.  The veteran submitted a response to the SSOC to the Board, however once again, the Board remanded the issue of service connection for sleep apnea to the regional office for new exams and readjudication of the claim.  Another Supplemental Statement of the Case was issued denying service connection for sleep apnea and again, the Veteran submitted a response.

The Board of Veterans’ Appeals reviewed the appeal again and issued a decision dated April 17, 2018, which denied service connection for obstructive sleep apnea (OSA) including as secondary to service-connected post-traumatic stress disorder (PTSD).  In its decision, the Board relied heavily on two VA exams from December 2017.

CCK makes Arguments against VA Exams

CCK argued and the Court agreed that the VA exams on which the Board based its decision were insufficient for the evaluation of secondary service connection.  Specifically, the examiners used the wrong legal standard in their opinions.  The examiners were supposed to assess whether the Veteran’s sleep apnea was worsened or aggravated by his PTSD.  Instead, however, the examiners applied the wrong legal standard and opined on whether the veteran’s PTSD permanently worsened his sleep apnea.

CAVC Vacates and Remands the Board’s decision

The Court issued a recent decision in the case of Ward v. Wilkie stating that permanent worsening of a condition is not required by any statute or regulation for secondary service connection to apply.  Thus, the CAVC ruled to vacate and remand the April 17, 2018 Board of Veterans’ Appeals decision due to the use of the permanent worsening standard used in the exams.  In its remand, the Court instructed the Board to obtain new exams that utilized the proper legal standard in order to issue a new decision.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael