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Court Wins

Board erred when it denied service connection for sleep apnea and increased rating for gastroparesis

Kaitlyn Degnan

March 8, 2018

Updated: November 20, 2023



The Veteran served honorably in the United States Army from 1965 to 1967, with service in Vietnam.  Following service, the Regional Office granted him service connection for diabetes mellitus and gastroparesis.  He subsequently filed a claim for service connection for sleep apnea as secondary to diabetes.  The Veteran also filed a claim for a rating in excess of 10% for his gastroparesis.  He based this claim on his symptoms of continuous abdominal pain, nausea, flare-ups of more severe pain, and the resulting effects on his ability to work.

BVA denies service connection for sleep apnea, higher rating for gastroparesis

The Board denied both claims in November 2016.  When issuing it’s decision the Board relied on a VA medical opinion in which the examiner noted that sleep apnea could worsen symptoms of diabetes.  However, as the examiner noted that there was no “correlation that diabetes could cause sleep apnea” the Board denied service connection.  In addition, the Board concluded that the Veteran’s gastroparesis symptoms were only mild in severity.  Therefore, it denied a higher rating for his condition.  The Veteran disagreed with this decision, and with CCK’s help, the he appealed both issues to the Court of Appeals for Veterans claims.

CCK appeals to Court; CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it denied both claims. The CAVC found that the VA examiner did not adequately address whether the Veteran’s diabetes aggravated or worsened his sleep apnea.  Rather, the examiner’s rationale only discussed causation, which is only one half of the relevant inquiry.  In addition, the Court agreed that the issue of secondary service connection was raised by the Veteran.  It found that the Board erred in relying on a VA examination that did not provide sufficient information to adjudicate that theory of service connection.

Regarding the Veteran’s gastroparesis rating, the Court the agreed that the Board failed to reconcile evidence of daily flare-ups, continuous pain, and effects on his ability to work with its conclusion that the disability was only mild.  It stated “the Board purported to assess the severity” of the Veteran’s condition but did not actually do so.  Instead, the Board merely listed evidence.  It concluded without further explanation that the Veteran’s symptoms were only mild in severity.

The Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.

About the Author

Bio photo of Kaitlyn Degnan

Kaitlyn joined CCK in September of 2017 as an Associate Attorney. Her practice focuses on representing disabled veterans before the United States Court of Appeals for Veterans Claims.

See more about Kaitlyn