judge_norm: M MILLS

text:
Citation Nr: A26009000
Decision Date: 01/30/26	Archive Date: 01/30/26

DOCKET NO. 250527-548340
DATE: January 30, 2026

REMANDED

Entitlement to service connection for tinnitus is remanded.

Entitlement to service connection for bilateral hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from March 1967 to January 1970.

The rating decision on appeal was issued in June 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On September 10, 2025, the Veteran, through his attorney, withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the June 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his attorney within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. � 20.302(b).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. �� 20.300, 20.302(b), 20.801.

However, because the Board is remanding the claims of entitlement to service connection for tinnitus and bilateral hearing loss, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. � 3.103(c)(2)(ii).

1. Entitlement to service connection for tinnitus is remanded.

2. Entitlement to service connection for bilateral hearing loss is remanded.

The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus related to hazardous noise exposure during his active military service.

The June 2024 AMA rating decision on appeal explicitly determined that report of the April 2024 VA hearing loss and tinnitus examination confirms the presence of currently diagnosed bilateral hearing loss and tinnitus disabilities. The Board is bound by these favorable findings. 38 C.F.R. � 3.104 (c).

The Veteran's DD Form 214 shows his military occupational specialty (MOS) was 57A10 - Duty Soldier. Service personnel records show his awards and decorations included an expert rifle badge and his record of assignments included basic combat training, stevedore, and cook apprentice.

The Veteran's service treatment records show that on report of medical examination for enlistment on March 28, 1967, audiometric findings were reported as 0 decibels at all frequencies bilaterally.  On periodic report of medical history dated November 19, 1968, the Veteran endorsed a history of ear, nose or throat trouble and running ears.  On the associated report of medical examination that same date, audiometric findings, reportedly ASA, were -10 decibels at all reported frequencies bilaterally. Clinical treatment note dated August 26, 1969, documents complaint of sinus and ear trouble diagnosed as an upper respiratory infection with probable strep.  On reports of medical history for separation dated June 27, 1969, and January 13, 1970, the Veteran again endorsed a history of ear, nose or throat trouble and running ears. Audiometric findings on report of medical examination for separation on June 27, 1969, were 10 decibels at 250 and 500 hertz, 5 at 1000 and 2000 hertz, and 10 at 4000 and 8000 hertz bilaterally. On report of medical examination for separation on January 13, 1970, audiometric findings were reported as 0 decibels at all frequencies bilaterally.

Post-service treatment records document a finding of tympanic membranes with old scarring on March 12, 1982. A VA hospital note dated August 2, 1985, documents the Veteran's wife felt he had decreased hearing, but the Veteran felt his hearing was normal. During a VA ENT consult in February 2021, the Veteran reported recently noticing poorer hearing in his left ear. On VA audiology consult in June 2021, the Veteran reported gradual and symmetric bilateral hearing loss. He reported military noise exposure and post-military noise exposure. He reported he may have ruptured his ear drums in both ears during basic training. Puretone examination showed right ear haring loss described as normal sloping to moderate sensorineural hearing loss in the right ear, and as normal sloping to moderately severe sensorineural hearing loss in the left ear.

The Veteran was afforded a VA hearing loss and tinnitus examination in April 2024. The examiner noted that the Veteran's MOS was a duty soldier, that he earned an expert badge with rifle bar, and that he served in Germany from January 1969 to February 1970.  The examiner documented the Veteran's report of recurrent intermittent tinnitus in the right ear only that occurs once daily and it lasts for 2 to 6 minutes. The examiner noted the Veteran's reported onset of tinnitus in 1967 during basic training that got worse later.  The examiner diagnosed bilateral sensorineural hearing loss and tinnitus and opined that these conditions are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. They reasoned that there is no previous audiological data available to review to assist in determining the etiology of the Veteran's conditions, thus, they're unable to provide a medical opinion without resorting to speculation.

To the contrary, a review of the claims file shows service treatment records are associated with the claims file with a currently assigned receipt date of July 25, 1972, and a date stamp as being received on October 1, 1985.

As the Veteran's service treatment records associated with the claims file were not reviewed during the VA examination, the Board finds that the April 2024 VA examination and opinion are inadequate to decide the claims. When VA provides an examination, it must ensure that it is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, a medical opinion based solely on the absence of documentation in service treatment records or that fails to take into account lay statements is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006).

Accordingly, a remand is required to correct a pre-decisional duty to assist error to aid the Veteran with the development of evidence in support of his claims and to provide an adequate examination and opinions regarding the nature and etiology of his claimed bilateral hearing loss and tinnitus disabilities.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA audiology examination by an appropriately qualified VA clinician. Provide the claims file, including a copy of this REMAND, to the examiner for review.

For the purposes of this evaluation, the examiner must take a detailed history from the Veteran regarding the symptomatology and history of his bilateral hearing loss and tinnitus.

Following audiometric examination and a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss and tinnitus had its onset during or is otherwise etiologically related to active service, to include reports of military noise exposure and running ears therein.

In addition, the examiner must address and discuss audiometric findings on enlistment examination in March 1967, periodic examination in November 1968, and on separation examinations in June 1969 under both ASA and ISO-ANSI standards.  This means that results should be converted to ISO-ANSI and the more favorable of the two sets of results, whether ASA or ISO-ANSI, should be used in deciding the claim.  Audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows:

Hertz	250	500	1000	2000	3000	4000	6000	8000

Add	15	15	10	10	10	5	10	10

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The examiner should address and discuss any threshold shifts in hearing on comparison of audiometric findings on enlistment examination in March 1967, periodic in-service examination in November 1968, and on separation examinations in June 1969 and January 1970.

The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided.

M. MILLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Rogers, 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.


series: ama

judge_norm: CHRISTOPHER SEPPANEN

judge_role: Veterans Law Judge

disposition: dismissed

benefit: tdiu

text:
Citation Nr: A26010000
Decision Date: 02/03/26	Archive Date: 02/03/26

DOCKET NO. 250821-571486
DATE: February 3, 2026

ORDER

The appeal concerning the issue of entitlement to a total disability based on individual unemployability (TDIU), is dismissed.

FINDING OF FACT

The Veteran timely appealed a December 2024 rating decision of Department of Veterans Affairs Regional Office, that denied him entitlement to TDIU by submitting a December 27, 2024, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement); thereafter, the Board of Veterans' Appeals denied the claim in a February 2025 decision.

CONCLUSION OF LAW

The criteria for dismissal of the appeal for entitlement to TDIU have been met. 38 U.S.C. � 5104C (a)(2)(A); 38 C.F.R. � 3.2500(b), (d), (e).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active-duty service in the United States Air Force from December 1967 to December 1971.

This matter comes to the Board of Veterans' Appeals (Board) from December 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), that as relevant here continued the previous denial of entitlement to TDIU.

The rating decision on appeal was issued in December 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In September 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the issue of entitlement to TDIU, then most recently addressed in a July 2024 rating decision.  In December 2024, the RO issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2024 rating decision.

In August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the July 2024 rating decision, which was subsequently subject to higher-level review. 38 C.F.R. � 20.301. If evidence was submitted during the period after the RO issued the decision, which was subsequently subject to higher-level review the Board may not consider it in its decision. 38 C.F.R. �� 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. � 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included following this decision.

Dismissal

As a general rule, concurrent appeals with respect to the same claim or issue are prohibited. See 38 U.S.C. � 5104C(a)(2); Terry v. McDonough, 37 Vet. App. 1 (2023). A "claim" is a request for a determination regarding entitlement to a specific benefit. See 38 C.F.R. � 3.1(p).

Here, in August 2025 VA Form 10182, the Veteran sought Board review of a December 2024 rating decision, which addressed entitlement to a TDIU.

However, prior to such submission, the Veteran had already submitted a VA Form 10182 in December 2024, seeking Board review of the same December 2024 rating decision addressing entitlement to a TDIU, that he sought review of in the latter August 2025 VA Form 10182. The Board issued a decision in February 2025, denying the claim for entitlement to TDIU. All Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. � 20.1100.

A Notice of Disagreement may only be filed with respect to an adjudicative determination by the RO. 38 C.F.R. � 19.21. A Veteran cannot challenge the merits of the Board's prior decision by expressing disagreement with the initial rating decision on appeal. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) ("the RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal").

(Continued on the next page)

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In other words, the August 2025 VA Form 10182 sought Board review of the same issue which the Veteran sought Board review of in his initial December 2024 VA Form 10182. As concurrent appeals are prohibited and the Board's February 2025 decision was final on the date stamped on the face of the decision, the Board finds the August 2025 VA Form 10182 to be invalid. See 38 U.S.C. � 5104C(a)(2); 38 C.F.R. � 3.2500(b); Terry v. McDonough, supra. As such, there is no valid AMA appeal for the Board to decide and the appeal is dismissed.

Christopher Seppanen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kelly, E. C.

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.


judge_norm: WILLIAM H DONNELLY

disposition: granted

benefit: education

text:
Citation Nr: A26011000
Decision Date: 02/05/26	Archive Date: 02/05/26

DOCKET NO. 260106-609598
DATE: February 5, 2026

ORDER

Effective January 1, 2020, entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted.

Effective January 1, 2020, entitlement to a grant of eligibility for Dependents' Educational Assistance under 38 USC chapter 35 (DEA) is granted.

FINDINGS OF FACT

1. Effective January 1, 2020, the Veteran's combined service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience; there is not one service-connected disability precluding employment.

2. Effective January 1, 2020, and no earlier, the Veteran has a permanent and total service-connected disability rating

CONCLUSIONS OF LAW

1. Effective January 1, 2020, the criteria for entitlement to TDIU are met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.340, 3.341, 3.400, 4.16, 4.19.

2. Effective January 1, 2020, the criteria for eligibility for DEA are met. 38 U.S.C. �� 3500, 3501, 3510, 5107(b), 5110; 38 C.F.R. �� 3.102, 3.400(o), 3.807(a), 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from June 1967 to January 1971.  These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2025 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA).

In November 2024, the Veteran submitted a VA Form 20-0996, a Decision Review Request for Higher-Level Review, and requested review of an October 2024 decision. The AOJ found a duty to assist error in March 2025, and developed the claim to correct the error. In June 2025, the AOJ issued the decision on appeal as a supplemental claim decision.

In January 2026, the Veteran filed a VA Form 10182, notice of disagreement (NOD), and elected direct review of the AOJ decision by the Board. 38 C.F.R. � 20.202. Under direct review, the Board considers the same record as that before the AOJ at the time of the decision on appeal. 38 C.F.R. � 20.301.

Remand is permitted only to correct a pre-decisional error or for any other error the correction of which raises a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. � 20.802.

The Board acknowledges that it may not decide an appeal before the deadline for requesting a docket switch has elapsed. Williams v. McDonough, 37 Vet. App. 305 (2024). However, this appeal has been advanced on the docket due to the Veteran's age, and in January 2026, the Veteran submitted a signed statement waiving his right to select a different Board review option.

TDIU

The June 2025 rating decision on appeal denied an increased rating in excess of 70 percent for the Veteran's service-connected trauma disorder, denied an increased rating in excess of 40 percent for partial pancreatectomy, denied an increased evaluation in excess of 30 percent for splenectomy, denied an increased rating in excess of 20 percent for diabetes mellitus, denied an evaluation in excess of 10 percent for tinnitus, and denied compensable evaluations for bilateral hearing loss, multiple linear scars abdomen, multiple non-linear scars abdomen. The rating decision also granted service connection for diabetic peripheral neuropathies of the bilateral lower extremities, each evaluated as 10 percent disabling, and upper extremities, each evaluated as noncompensable, effective March 10, 2025.

The June 2025 rating decision also found that because a September 6, 2022 rating decision shows that effective September 28, 2021, the Veteran's combined disability rating is 100 percent, the AOJ ruled the issue of TDIU moot.

However, the issue of entitlement to TDIU is not moot. A review of the file reveals the Veteran filed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability in April 2016. In March 2025, the AOJ acknowledged the Veteran has met the minimum criteria for entitlement to TDIU since July 31, 2001 and requested VA examinations and opinions for TDIU.

The Veteran's representative contends the Veteran's service-connected disabilities have prevented him from performing the mental and physical tasks required by all substantially gainful employment since at least January 1, 2020. The current appeal stream has been pending in some form since May 31, 2018, the date of receipt of a claim for service connection for prostate cancer; claims regarding the evaluation of such have been pending since. The AOJ, based on the date of a private treatment record, has used the date of May 23, 2018. Prior claims had been adjudicated and those decisions were final.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. � 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. �� 3.340(a)(1), 4.15.

The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. �� 3.341, 4.16, 4.19.

The United States Court of Appeals for Veterans' Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. � 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

From May 23, 2018, to January 1, 2020, the Veteran was receipt of a 100 percent schedular evaluation for prostate cancer; this renders the question of TDIU moot for this period.

Effective January 1, 2020, the Veteran was in receipt of a 50 percent disability evaluation for other trauma and stressor related disorder, a 40 percent disability evaluation for partial pancreatectomy with post-surgical adhesions with esophageal reflux, a 30 percent disability evaluation for splenectomy and laceration of liver, a 20 percent disability evaluation for diabetes mellitus, a 10 percent disability evaluation for tinnitus, a 0 percent evaluation for bilateral hearing loss, a 0 percent evaluation for multiple non-linear postoperative scars, and a 0 percent evaluation for multiple linear postoperative scars.

For the period from January 1, 2020 to September 28, 2021, the Veteran was in receipt of a 50 percent disability evaluation for other trauma and stressor related disorder, a 40 percent disability evaluation for partial pancreatectomy with post- surgical adhesions with esophageal reflux, a 40 percent disability evaluation for prostate cancer status post prostatectomy, a 30 percent disability evaluation for splenectomy and laceration of the liver, prostate cancer 40 percent disabling, a 20 percent disability evaluation for diabetes mellitus, a 10 percent disability evaluation for tinnitus, a 0 percent evaluation for bilateral hearing loss, a 0 percent evaluation for multiple non-linear postoperative scars, and a 0 percent evaluation for multiple linear postoperative scars.

In his April 2016 application for TDIU, the Veteran stated he had completed 3 years of college. He reported that he had no other education or training. He had last worked in August 2015 as an accountant/project manager.

In June 2016, a VA Form 21-4192, Request for Employment information was received from his last employer, which indicated the Veteran retired in August 2015 after 42 years of employment.

The Veteran underwent a VA liver conditions examination in August 2016. The VA examiner opined that the Veteran's liver laceration, status post repair did not impact his ability to work.

The Veteran underwent a VA scar examination in August 2016. The VA examiner opined that the Veteran's scars did not impact his ability to work.

The Veteran underwent a VA peritoneal adhesions examination in August 2016. The Veteran reported experiencing pain and constipation. His symptoms were documented to be moderate. The VA examiner opined that the peritoneal adhesions impacted the Veteran's ability to work due to symptoms of abdominal pain from the adhesions.

The Veteran underwent a VA diabetes mellitus examination in August 2016. The VA examiner opined that the Veteran's diabetes mellitus impacted the Veteran's ability to work, as the Veteran could not work when his sugar is too high or too low; he has to go home. The VA examiner stated the Veteran had a hard time controlling his sugars.

The Veteran underwent a VA gall bladder and pancreas examination in August 2016. The VA examiner opined that the Veteran's pancreatectomy impacts his ability to work as he experiences abdominal pain when it flares up; he has to lie in bed and wait for it to calm down.

The Veteran underwent a VA prostate cancer examination in June 2018. The Veteran reported that he would be undergoing a prostatectomy in July. The Veteran reported experiencing urinary frequency of daytime voiding every 1 to 2 hours and awakening at night 3 to 4 times to void.

The Veteran underwent a VA prostate cancer examination in March 2019. The Veteran's prostate cancer was in remission. The VA examiner opined that the Veteran's prostate cancer impacts his ability to work in that he is urinating every 1 to 2 hours, and needs to be close to a bathroom.

The Veteran underwent a VA hearing loss and tinnitus examination in December 2019. The VA examiner opined that the Veteran's hearing loss impacts his ability to work in that he asks people to repeat themselves frequently. The VA examiner opined that the Veteran's tinnitus did not impact his ability to work.

In an October 2020 statement, the Veteran stated that he has difficulty walking long distances and is not able to participate in hobbies such as golf due to his service-connected disabilities. The Veteran stated that his disabilities are socially limiting because it is challenging or hard to be around others for any significant amount of time. The Veteran stated that he has to use the restroom frequently and is limited socially in what he is able to do as a result.

The Veteran underwent a VA initial posttraumatic stress disorder examination in December 2020. The VA examiner opined that the occupational and social impairment caused by the Veteran's other trauma and stressor-related disorder was best summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran's symptoms included anxiety, chronic sleep impairment, and an inability to establish and maintain effective relationships. The VA examiner documented the Veteran was neat and clean in appearance. The Veteran was friendly, engaging and affable. His speech was normal and his comprehension appeared good. He appeared to be calm and well-focused during the examination. His thought process was logical, linear and goal-focused. His thought content was non-delusional and his mood was euthymic, upbeat and normal in range of expression. His rapport was judged to be good.

In September 2021, the Veteran submitted a report from Dr. SWE, an osteopath,  regarding the impact of the Veteran's service-connected disabilities on his ability to work. Dr. SWE acknowledged the Veteran was, at that time, in receipt of service-connected benefits for partial pancreatectomy, prostate cancer, splenectomy, other trauma and stressor related disorder, diabetes mellitus type II with diabetic retinopathy and erectile dysfunction, tinnitus, bilateral hearing loss, and multiple linear and non-linear scars.  Dr. SWE reviewed the Veteran's file, specifically citing the findings of the VA examinations pertaining to the impact his disabilities have on his ability to work. Dr. SWE stated that in his conversation with the Veteran, the Veteran told him that he retired in August 2015 after 42 years of service as an accountant. The Veteran stated that he had to take frequent bathroom breaks due to his prostate issues, had abdominal pain, had trouble sleeping and had trouble hearing people. Dr. SWE opined that the Veteran only able to walk for 20 minutes and is unable to lift or carry more than 20 pounds due to his abdominal pain. Dr. SWE opined that due to these issues, the Veteran would miss work or leave early three or more days per month due to the pain form his partial pancreatectomy with post-surgical adhesions with esophageal reflux, prostate cancer status post prostatectomy, and splenectomy and laceration of the liver. The Veteran would need multiple additional breaks per day aside from normally scheduled morning, lunch and afternoon breaks so he can lie down, recline, stretch, etc., and for more than three days per month he would not stay focused for at least 7 hours of an eight hour workday due to pain, and additional, frequent bathroom breaks. The Veteran is in constant pain and often has difficulty concentrating and staying focused. Due to his abdominal conditions, he sleeps poorly at night. The Veteran relayed a reduced ability to handle stress. Dr. SWE opined that his mental health conditions would only further preclude his ability to work. His poor sleep, frequent bathroom breaks and inability to hear people would further aggravate his irritability and stress level. Dr. SWE opined that based on his knowledge of the Veteran's service-connected impairments and impact physically, the Veteran would not be able to maintain substantially gainful employment because of these conditions. Dr. SWE opined that when considering the Veteran's physical limitations and his past relevant work experience, the Veteran is unable to maintain substantially gainful employment as a result of his service-connected partial pancreatectomy with post-surgical adhesions and esophageal reflux, prostate cancer status post prostatectomy, splenectomy and laceration of the liver, other trauma and stressor related disorder and diabetes mellitus type 2 with diabetic retinopathy. Dr. SWE opined that this has been the case "since at least the date the Veteran's rating was reduced, January 1, 2020. Prior to this date the Veteran was at a 100% rating for his prostate cancer."

Based on the evidence of record, notably the VA examinations described above and the opinion of Dr. SWE, the Board finds the Veteran's service-connected partial pancreatectomy with post-surgical adhesions and esophageal reflux, prostate cancer status post prostatectomy, splenectomy and laceration of the liver, other trauma and stressor related disorder and diabetes mellitus type 2 with diabetic retinopathy, hearing loss and tinnitus preclude him from maintaining substantially gainful employment consistent with his education and occupational experience. In this regard, the Veteran had been employed as an accountant and retired in 2015. The Veteran is precluded from even light manual work due to his service-connected partial pancreatectomy with post-surgical adhesions and esophageal reflux, prostate cancer status post prostatectomy, splenectomy and laceration of the liver, and diabetes mellitus type II. He is precluded from more sedentary work and less physical work, such as office work, due to his other trauma and stressor related disorder, hearing loss, tinnitus, prostate cancer status post prostatectomy and partial pancreatectomy with post-surgical adhesions and esophageal reflux. The Veteran has anxiety, chronic sleep impairment, experiences an inability to establish and maintain effective relationships. He needs to urinate every 1 to 2 hours, has difficulty hearing others and experiences abdominal pain which requires him to rest. These disabilities would make maintaining concentration, completing complex tasks, and interacting with others difficult. In light of the above evidence, the Board finds that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities. TDIU is warranted from January 1, 2020, the date on which his schedular 100 percent rating expired.

The Board has considered whether 38 C.F.R. � 3.400(o)(2), allowing up to one year of retroactive increased evaluation, is applicable here.  An increase may be awarded prior to the date of receipt of a formal claim where the evidence shows actual increase within the year prior to the receipt.  The effective date of increase is then the date of actual worsening.  Here, the Veteran has maintained he was unemployable for several years prior to May 2018. Further, no increase in any service-connected disability is shown between May 2017 and May 2018.

In light of the award of TDIU, the Board must address whether a claim for special monthly compensation (SMC) is reasonably inferred. Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the statutory housebound rate is payable where the veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent disabling. 38 U.S.C. � 1114(s); 38 C.F.R. � 3.350(i). As the award of TDIU is based on the combined effect of the Veteran's service-connected conditions, for SMC purposes, the award of the TDIU does not satisfy the requirement of a single, totally disabling service-connected condition. 38 C.F.R. � 3.350; Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). No further discussion is required.

DEA benefits

Entitlement to DEA is established when a Veteran "has a permanent total service-connected disability." 38 C.F.R. � 3.807(a)(2).  The effective date for basic eligibility for DEA benefits is directly related to a finding that the Veteran has a total disability that is permanent in nature. 38 U.S.C. �� 3500, 3501, 3510; 38 C.F.R. � 3.807. As the Veteran is entitled to TDIU effective January 1, 2020, the Veteran is eligible for DEA benefits effective the same date.

The Board acknowledges that the Veteran had a total disability rating, for prostate cancer, effective May 23, 2018, but such was not a permanent rating. The Schedule specifically provides that the total evaluation only persists during active disease and for a period following the cessation of therapeutic treatment.

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Margaret M. Lunger

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.


judge_norm: H SEESEL

disposition: remanded

condition: cancer

text:
Citation Nr: A26012000
Decision Date: 02/09/26	Archive Date: 02/09/26

DOCKET NO. 251015-586549
DATE: February 9, 2026

REMANDED

Entitlement to service connection for erectile dysfunction as secondary to bladder cancer is remanded.

REASONS FOR REMAND

The Veteran, who is the appellant, had service from April 1964 to March 1966.

In the October 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

In March 2025, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for erectile dysfunction most recently addressed in a January 2025 rating decision.  In June 2025, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the June 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. � 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. � 3.103(c)(2)(ii).

1. Service connection for erectile dysfunction as secondary to bladder cancer is remanded.

The issue of entitlement to service connection for erectile dysfunction (ED) is remanded to correct a duty to assist error that occurred prior to the June 2025 rating decision on appeal. The Agency of Original Jurisdiction (AOJ) obtained a December 2024 medical opinion prior to the January 2025 rating decision on appeal. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran's erectile dysfunction is caused or aggravated by the service-connected coronary artery disease, hypertension, and posttraumatic stress disorder (PTSD). The December 2024 VA examiner focused on the relationship, if any, between the erectile dysfunction and toxic risk exposure. Significantly, the examiner noted that erectile dysfunction could be the result of an underlying psychological or physical condition, including a heart conditions and blood pressure issues, but did not offer an opinion on secondary service connection. The AOJ did not request an addendum despite the Veteran's claim being that the condition is secondary to his service-connected disability.

The matter is REMANDED for the following action:

1. Obtain an addendum opinion from a VA examiner for the Veteran's erectile dysfunction.  The examiner must review the claims file.

The examiner is asked to provide a response to the following:

Is the disability at least as likely as not (nearly equal) related to any service-connected disability?

Is the disability at least as likely as not (nearly equal) aggravated by any service-connected disability?

Provide a rationale to support the opinion(s).

In providing the requested opinion, consider the Veteran's description of any in-service injury and symptoms as well as post-service symptoms.  If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted.  Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Connally, 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.


judge_norm: T REYNOLDS

condition: tinnitus

text:
Citation Nr: A26013000
Decision Date: 02/11/26	Archive Date: 02/11/26

DOCKET NO. 201215-126117
DATE: February 11, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.

FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss is at least as likely as not related to in-service noise exposure.

2.  The Veteran's tinnitus is at least as likely as not related to in-service noise exposure.

CONCLUSIONS OF LAW

1.  The criteria to establish service connection for bilateral hearing loss disability are met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.385.

2.  The criteria to establish service connection for tinnitus are met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 2012 to August 2012.

In the December 15, 2020, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on October 7, 2024.

Therefore, the Board may only consider the evidence of record at the time of the July 2020 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran at his hearing or within 90 days following the hearing.  38 C.F.R. � 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. �� 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. � 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

Finally, the Board acknowledges that the Veteran submitted an August 2025 VA Form 21-22 more than 90 days after the February 2021 letter informing him that his AMA appeal had been placed on the Board's docket.  The Veteran was previously unrepresented.  As such, the Board finds good cause to accept this request for a change in representation.  See 38 C.F.R. � 20.1304(b).  In accepting this change, the Board observes that the Veteran's present representative has not received a copy of the February 2021 AMA docketing letter.  However, as the decision herein represents a full grant of the benefits sought on appeal, the Board finds that the Veteran is not prejudiced by the failure to notify the representative of the current appeal.

Service Connection - Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. � 1110; 38 C.F.R. � 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disability was incurred in service.  38 C.F.R. � 3.303(d).

Burden of Proof

VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. � 5107; 38 C.F.R. �� 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Factual Background and Analysis

The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he contends are etiologically related to his military service.

The medical evidence confirms the Veteran currently has bilateral hearing loss and tinnitus disabilities.  See October 2024 Audiological Evaluation and July 2020 VA Examination.  The central issue that must be resolved is whether the Veteran's current disabilities originated during service or are otherwise related to service.

Initially, the Board notes the Veteran's service  treatment records (STRs) do not contain complaints of hearing loss or tinnitus in service.  His DD-214 states he was a Signal Operations Support Specialist.  The U.S. Army has determined that this military occupational specialty (MOS) carries a low probability for exposure to acoustic trauma.

The AOJ obtained a VA examination in July 2020 to assess the nature and etiology of the Veteran's claimed hearing loss and tinnitus disabilities.  The July 2020 audiological testing did not reveal evidence of a current bilateral sensorineural hearing loss disability in accordance with 38 C.F.R. � 3.385, however the VA examiner diagnosed the Veteran with recurrent tinnitus.  As noted above, the Veteran submitted an October 2024 VA audiology examination.  The October 2024 examination indicates that the Veteran has a diagnosis of bilateral sensorineural hearing loss disability in accordance with 38 C.F.R. � 3.385.

The VA examiner concluded that the Veteran did not have a current diagnosis of hearing loss.  The VA examiner also opined that due to the lack of combat activity, an MOS with low probability of exposure to hazardous noise, and the normal hearing thresholds obtained in service, it is less likely than not that exposure to military noise caused the Veteran's tinnitus.

Notwithstanding the medical opinion provided by the July 2020 VA examiner, the Veteran reported he was exposed to significant noise exposure during his period of active duty, specifically when he was at the range during AIT.  The Veteran testified at his Board hearing that following the range exercises, he reported to his chain of command that he was experiencing ringing and muffling in his ears.

Further, the Veteran testified that he initially noticed his diminished hearing and tinnitus during his time in the Army, and his disabilities have continuously persisted and worsened since that time.

In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.   First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.   Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation.").

Here, the Veteran reported he experienced diminished hearing and tinnitus during service, and it has persisted ever since.  The Board finds the Veteran competent to report on his hearing limitations.  It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life.  Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence.  In this respect, the Board finds the Veteran's own reports of decreased hearing and ringing of the ears to be at least as probative as the above-noted VA examiner's findings.

As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disabilities and his exposure to acoustic trauma in service.

The Veteran has competently and credibly reported that he experienced hearing loss and tinnitus in service.  Accordingly, a nexus to service is established.

To the extent the July 2020 VA examiner opined that it was less likely as not that the Veteran's hearing loss and tinnitus were related to his military service, the Board finds this opinion to be of limited probative value as the opinion failed to address the Veteran's lay statements regarding the onset of his hearing loss and tinnitus and also failed to address his statements regarding noise exposure when he was at the range.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007).

In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed disabilities and his in-service acoustic trauma is at least in approximate balance with the evidence against a nexus.

Therefore, the Veteran is entitled to service connection for his bilateral hearing loss and tinnitus disabilities.

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nestander, Jessica S.

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.


judge_norm: R CASADEI

judge_role: Acting Veterans Law Judge

text:
Citation Nr: A26014000
Decision Date: 02/17/26	Archive Date: 02/17/26

DOCKET NO. 210208-138890
DATE: February 17, 2026

REMANDED

Entitlement to service connection for acute lymphocytic leukemia (AML) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from June 1983 to May 1987.  Unfortunately, he died in August 2021.

The appellant, who is the Veteran's surviving spouse, filed a timely application for substitution of claimant.  See August 2021 VA 21-534EZ Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child.  VA correspondence subsequently advised her of her status and responsibilities as a substitute appellant.  See September 2021 Notification Letter (e.g. VA 20-8993, VA 21-0290, PCGL).  Accordingly, she is recognized as the substitute appellant for purposes of adjudicating the pending appeal.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction (AOJ).

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket.  A hearing was scheduled in January 2025; however, it was cancelled due to the death of the Veteran.  The Veteran's spouse had not yet been substituted as the appellant at that time.  As such, there is no pending hearing request at this time.

1. Entitlement to service connection for AML, for accrued benefits purposes, is remanded.

Prior to his death, the Veteran asserted that his AML is due to benzene exposure at U.S.S. Mckee.  See September 2019 VA 21-526EZ, Fully Developed Claim (Compensation).

Turning to the evidence of record, in a September 2019 statement from the Veteran's wife, she stated that the Veteran was stationed on U.S.S. Mckee from 1983 to 1987 and that he was a nuclear machinist and was certified in RADCON.  She described that as a machinist for the Navy, the Veteran worked in the machine shop 5-6 days a week depending on his duty and that the machine shop had many machines with poor ventilation.  She also stated that he was not provided any protective gear except for glasses for flying debris and ear plugs.  She also stated that the onset of the Veteran's symptoms was 10 years earlier, which she estimated was 22 years after discharge.  See September 2019 Email Correspondence.

In September 2019, the Veteran submitted medical literature discussing that benzene even at low-level exposure can greatly increase the risk of leukemia.  The medical literature also noted that typical workplaces prone to benzene exposure include auto repair shops, bus garages, chemical plants, oil pipelines, petroleum refineries, railroads, ships and tankers, and shoe factories.

The Veteran's personnel records reflect that he was stationed on U.S.S. McKee.  Military personnel records also reflect that on a period on report from July 1985 to March1986, the Veteran was assigned to inside machine shop, machine repair, and department of fast attack submarine.  Evaluation comments noted that the Veteran was a skilled machinery repairman.  The report also noted that the Veteran performed critical machining of the lube oil endplates for U.S.S. McKee that required critical tolerance.  See October 2019 Military Personnel Record.

In December 2019, the Veteran was afforded a VA examination for hematologic and lymphatic conditions.  The examiner diagnosed the Veteran with AML.  The examiner then documented the Veteran's report of onset as the condition beginning in April 2018 when he was diagnosed after many years of complaints of chronic fatigue and joint pain that led to varied treatment and tests until blood changes were noticed.  Status of his primary condition was noted as active.  See January 2020 C&P Exam.

In a December 2019 VA opinion, the examiner opined that the Veteran's AML was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner reasoned that the Veteran reported chronic fatigue and joint pain for years and that the current exam findings include report of graft vs host disease with treatment of steroids.  The examiner remarked that examinations in service, to include during separation, noted that Veteran did not have any blood disorders or chronic fatigue and the exam was normal with exception of congenital cortical opacity.  The examiner did note that in the separation examination dated in May 1987, the Veteran reported a positive history of occupational exposure to ionizing radiation.  The examiner also discussed that an August 1985 document from U.S.S. McKee noted that he had occupational exposure to degreaser and metal cleaners, dry cleaning solvents, hydraulic fluids, beryllium, and noise.  The examiner reasoned that the Veteran was diagnosed with AML 15 years earlier after his military service ended.  See January 2020 C&P Exam.

In a February 2020 addendum opinion, the VA examiner opined that the Veteran's AML was not due to or the result of his duties as a machinery repairman and possible benzene exposure.  The examiner reasoned that leukemia is a monoclonal disorder characterized by progressive accumulation of functionally incompetent lymphocytes, and that the exact cause is uncertain.  The examiner explained that there are numerous risk factors which include genetic causes, abnormalities of certain oncogenes, environmental or occupational causes, radiation, and chronic inflammation.  The examiner reasoned that he found no evidence in the claims file that allows for correlation of leukemia to any one or group of causes, and that attributing benzene or other exposure events would be entirely speculative and would not meet the 50 percent likelihood threshold.

After a review of the evidence, the Board finds that remand is required to correct pre-decisional duty to assist error under 38 C.F.R. � 20.802(a).

Although VA obtained medical opinions addressing the etiology of the Veteran's AML prior to the February 2020 rating decision on appeal, these opinions are inadequate for adjudicative purposes.  The December 2019 VA examiner did not address the Veteran's contention of benzene or other exposure during service and instead provided an opinion focusing on in-service incurrence and gap in years between his service and subsequent diagnosis of AML.

The February 2020 VA examiner did acknowledge occupational and environmental exposures are recognized risk factors for AML but concluded that a nexus could not be established because there was no evidence in the claims file correlating the Veteran's AML to service.  This rationale is conclusory and does not reflect a reasoned medical explanation connecting the relevant facts to the conclusion reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)(an adequate medical opinion must support its conclusion with an analysis the Board can consider and weight); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Critically, the examiner did not meaningfully address medical literature submitted by the Veteran discussing an association and the development of AML, nor explain why such literature was not applicable to the Veteran's circumstances.  When medical treatise evidence is reasonably raised by the record, an examiner must address the evidence or explain why it does not apply.  See McCray v. Wilkie, 31 Vet. App. 243 (2019).

Because these deficiencies existed at the time of the February 2020 rating decision, the duty to assist error is pre-decisional, and remand is required.  See38 U.S.C. � 5103A; 38 C.F.R. � 20.802(a).

The matter is REMANDED for the following action:

1. Obtain a VA medical opinion from an appropriate clinician addressing the etiology of the Veteran's AML.  The claims file must be reviewed.

The examiner must opine whether it is at least as likely as not that the Veteran's AML had its onset during service or is otherwise related to service, to include occupation and environmental exposures associated with his documented duties.

In providing the opinion, the examiner must address the medical literature of record discussing an association between benzene and other chemical exposure to leukemia, and explain whether and why such literature does or does not apply to the Veteran's case, to include a discussion of Veteran's duties as a mechanist and working in a mechanic shop during service.

Provide a complete rationale that applies to general medical principles to the Veteran's specific circumstances.

R. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rasul, H.

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.


judge_norm: J KIRBY

text:
Citation Nr: A26015000
Decision Date: 02/18/26	Archive Date: 02/18/26

DOCKET NO. 200507-87264
DATE: February 18, 2026

ORDER

New and relevant evidence has been received with respect to the claim for service connection for the cause of the Veteran's death, and the claim will be readjudicated.

Service connection for the cause of the Veteran's death is granted.

FINDINGS OF FACT

1. An October 2017 rating decision denied service connection for cause of death.

2. Evidence received since the October 2017 rating decision is new and tends to prove or disprove a matter at issue with respect to the claim of entitlement to service connection for cause of death.

3. The evidence weighs in favor of finding that the lung cancer that resulted in the Veteran's death was related to his military service, to include exposure to contaminated water at Camp Lejeune.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim for service connection for cause of death has been met. 38 U.S.C. �� 1131, 5103A(h), 5108; 38 C.F.R. �� 3.303, 3.2501.

2. The criteria for service connection for the cause of death have been met. 38 U.S.C. �� 5107, 5110; 38 C.F.R. �� 3.102, 3.159, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1953 to July 1956. The Veteran died in November 2015; the Appellant is his surviving spouse.

By way of history, a May 2018 Department of Veterans Affairs (VA) Regional Office rating decision, issued under the Legacy review system, confirmed and continued the previous denial of service connection for cause of death, finding the evidence received was not new and material. The Appellant's Notice of Disagreement (NOD) was received in January 2019.  A Statement of the Case (SOC) was issued in April 2020.

Within 60 days of the April 2020 SOC, the Appellant opted the appeal into the Appeals Modernization Act (AMA) system by submitting a timely May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement or NOD), and elected the Hearing docket. A Board hearing was held on April 26, 2024.

Therefore, the Board may only consider the evidence of record at the time of the April 2020 SOC, as well as any evidence submitted by the Appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. � 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the April 2020 SOC and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. �� 20.300, 20.302(a), 20.801.

Whether new and relevant evidence has been received with respect to the claim for service connection for cause of death.

The Appellant's November 2015 claim for service connection for cause of the Veteran's death was denied in an October 2017 rating decision. The Appellant requested reconsideration of the claim in May 2018, and the AOJ issued the May 2018 decision denying the claim. The basis for the denials was that the evidence did not show that the disability that resulted in the Veteran's death, lung cancer, was related to service.

As noted above, the Appellant opted the claims into the Appeals Modernization Act (AMA) system of appeals by filing a timely VA Form 10182 to the April 2020 SOC. Pursuant to the AMA, the criteria for readjudicating a previously denied claim changed from a new and material standard to a new and relevant standard, and this appeal is considered under the AMA, as the Veteran opted the claims into the AMA from the April 2020 SOC.

VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. � 3.156 (d). "New evidence" is defined as evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" is evidence that tends to prove or disprove a matter at issue in a claim. 38 C.F.R. � 3.2501 (a)(1). The standard shall not be construed to impose a higher evidentiary threshold than the standard that was in effect prior to the date of the enactment of the AMA. See 38 U.S.C. � 5108.

For supplemental claims under the AMA, new and relevant evidence must be presented or secured to warrant readjudication of the claim. See 38 C.F.R. � 3.2501. This holds true regardless of whether the most recent prior decision on the issue is final or whether the supplemental claim is received within one year of the most recent prior decision. See 38 C.F.R. � 3.2501(a)(1). Thus, despite the fact that the May 2018 rating decision was issued less than one year prior to the receipt of the supplemental claim, the question before the Board is whether the evidence received after the October 2017 rating decision, but prior to the issuance of the May 2018 decision on appeal, is both new and relevant.

Since the October 2017 rating decision, the Appellant submitted the document titled Camp Lejeune: Past Water Contamination Update December 16, 2014, which identifies lung cancer as a condition for which the Veteran may have been entitled to receive VA health benefits due to working at U.S. Marine Corp Base Camp Lejeune, North Carolina. The Board finds that this new document meets the low threshold of new and relevant evidence. Accordingly, the claim will be readjudicated.

Service connection for the cause of death.

Pursuant to 38 U.S.C. � 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying Veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. � 1310 (a); 38 C.F.R. � 3.5 (a)(1).

The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. � 3.312 (a). In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. � 3.312 (c)(1).

The Veteran died in November 2015. The death certificate lists the immediate cause of death as lung cancer. See November 2015 Death Certificate. The Appellant maintains that the Veteran's death was the result of lung cancer that resulted from exposure to contaminated water at Camp Lejeune.

In September 2017, a VA physician opined that it was less likely than not that the Veteran's lung cancer was due to his exposure to contaminated water while in service at Camp Lejeune. The examiner referenced that the Veteran "smoked heavily in the 1970s per report 3 ppd" and that current medical evidence would not strongly implicate his water exposure as a significant risk factor. The examiner explained that the majority of data examining the epidemiology of lung cancer comes from the developed world, where cigarette smoking is the predominant risk factor, and that in the developing world additional risk factors, such as smoke and air pollution, may be particularly important. The examiner also stated that the risk of lung cancer increases with both the number of cigarettes smoked per day as well as the lifetime duration of smoking, and that factors that may influence the likelihood of developing lung cancer in smokers include the age at onset of smoking, the degree of inhalation, the tar and nicotine content of the cigarettes, and the use of unfiltered cigarettes. The examiner did not apply the risk factors such as number of cigarettes smoked per day or age at onset of smoking to the Veteran specifically.

An April 2020 private medical opinion by the Veteran's provider of 20 years opined that the Veteran's condition was caused by contamination of chemicals while serving on active duty in the Marine Corps. The clinician explained that the Veteran had been a nonsmoker for over 50 years before his diagnosis. See April 2020 Opinion from Dr. R.C.

Another April 2020 opinion from a private pulmonologist opined that the Veteran's lung cancer diagnosis was not likely secondary to smoking, as he smoked only eight years and was smoke free for over fifty years. The examiner opined that the Veteran's lung cancer was more likely due to contamination of chemicals in the water while serving active duty in the Marine Corp at Camp Lejeune.

A subsequent December 2023 opinion from a private clinician opined that to a reasonable degree of medical certainty, the Veteran's lung cancer was related to service. The examiner explained that his expertise included physiology, pharmacology, and experimental therapeutics. The examiner stated that service members and their families living at the base bathed in and ingested tap water that was contaminated with harmful chemicals at concentrations from 240 to 3400 times levels permitted by safety standards. The examiner referenced the presence of trichloroethylene (TCE) and tetrachloroethylene (PCE) as well as 70 other contaminants including benzene that have been identified as contaminating the water supply. Unfortunately, to this date all components of the contaminant water have yet to be identified, according to the examiner. The examiner also explained that benzene and dioxins are known carcinogens that persist in body tissues for decades, causing DNA damage, oxidative stress, and epigenetic changes. The examiner stated that diseases may not appear until decades after exposure. The examiner also stated that lung cancer is strongly linked to organic solvents and benzene. He acknowledged the correlation between lung cancer and smoking, but explained that the risk drops significantly after quitting, and returns close to nonsmoker levels after five to 15 years. The examiner also explained that the cancer metastasized showing aggressive disease consistent with toxic exposure.

The Board finds that the evidence is at least evenly balanced as to whether the Veteran's lung cancer was due to service.  As any reasonable doubt must be resolved in favor of the Appellant, the Board finds that entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102. The appeal is granted.

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.B.

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.


judge_norm: B MULLINS

condition: back

text:
Citation Nr: A26016000
Decision Date: 02/23/26	Archive Date: 02/23/26

DOCKET NO. 200801-101089
DATE:    February 23, 2026

ORDER

Entitlement to service connection for degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis, claimed as a back condition, is granted.

FINDING OF FACT

The evidence of record weighs persuasively in favor of finding that the Veteran's current degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis, claimed as a back condition, began during active service or is otherwise causally related to an in-service injury, event, or disease.

CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis, claimed as a back condition, have been met. 38 U.S.C. �� 1110, 1131, 1153, 5103(a), 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.306.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran was a member of the Ohio Army National Guard from April 1978 to October 1978, when he enlisted in the West Virginia Army National Guard. His service included a period of active duty for training (ACDUTRA) from November 1978 to August 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

By way of history, in the March 2020 rating decision, the agency of original jurisdiction (AOJ) denied service connection for degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis, claimed as back condition. The Veteran subsequently appealed the March 2020 rating decision with the submission of an August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement).

In the August 2020 Notice of Disagreement, the Veteran elected the Hearing Review option; therefore, the Board may only consider the evidence of record at the time of the March 2020 AOJ decision, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from the scheduled hearing. 38 C.F.R. � 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date of the scheduled hearing, or (2) more than 90 days following the date of the hearing, the Board did not consider it in its decision. 38 C.F.R. �� 20.300, 20.303, 20.801. In May 2024, the Veteran withdrew his hearing request and cancelled the hearing, which was scheduled for May 23, 2024.

If the Veteran would like the VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. � 3.2501. If the evidence is new and relevant, the VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service was aggravated thereby. 38 U.S.C. � 1110, 1131; 38 C.F.R. �3.303(a).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also, Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

Service connection may also be warranted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. �1113(b); 38 C.F.R. � 3.303(d).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. �� 1110, 1131; 38 C.F.R. �� 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability, evidence of a service-connected disability, and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. � 3.303(b).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the evidence supports the claim or is in approximate balance, i.e., "nearly equal". When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. � 5107(b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal, but it does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. � 1111; 38 C.F.R. � 3.304(b).

If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. � 1153; 38 C.F.R. � 3.306(b); see Wagner v. Principi, 370 F.3d at 1096. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. � 1153; 38 C.F.R. � 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. � 3.306(b).

Entitlement to service connection for degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis, claimed as a back condition.

Here, the Veteran has been diagnosed with degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis. See December 2019 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). Thus, the first Shedden requirement is satisfied.

On the Veteran's April 1968 enlistment examination, slight lordosis of the spine was clinically noted. As a spinal defect was noted upon entrance, the Veteran is not presumed to have been in sound condition with respect to this disability. See 38 U.S.C. � 1111. Nevertheless, service connection may be awarded for a preexisting disability that was aggravated in service. As noted above, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. � 1153; 38 C.F.R. � 3.306. Whether a pre-existing disorder underwent an increase in severity during service is determined based on evidence of the manifestations of the disorder before, during, and after service. 38 C.F.R. � 3.306.

Here, the record reflects that the Veteran's preexisting slight lordosis of the spine disability increased in severity due to his active service. In this regard, the Veteran reported that he did not have problems with his back prior to service and that he had back pain and symptoms throughout service and since service. The Board finds that there was an increase in disability in service, as the Veteran denied any back problems prior to service, and the condition noted at the entrance examination has subsequently progressed to degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis.

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. � 1153(a); 38 C.F.R. � 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also, Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of disability even where not corroborated by contemporaneous medical evidence).

The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against the claim, the claim must be denied.

Thus, because the Veteran's preexisting spinal condition is found to have increased in service, the presumption of aggravation applies. See 38 U.S.C. � 1153. The Board further finds that there is insufficient evidence to rebut the presumption of aggravation by clear and unmistakable evidence. See 38 C.F.R. � 3.306(b) (2017); Cotant v. Principi, 17 Vet. App. 116, 124, 130 (2003). There is no competent medical or lay evidence to suggest that the increase in the Veteran's pre-existing spinal condition during his period of active service was due to the natural progress of the disease. In fact, the evidence is to the contrary, as the Veteran denied any back problems prior to service, and the condition noted at the entrance examination has subsequently progressed to degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis. The burden to show no aggravation of a pre-existing disease or disability during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). In this case, there is no clear and unmistakable evidence that the increase in severity was due to the natural progression of the disease and not time spent in service.

The Board acknowledges that a December 2019 VA examiner opined that the Veteran's spinal condition, which clearly and unmistakably preexisted service, was not aggravated by service. However, the Board affords this opinion no probative weight because it is conclusory. It fails to accurately account for the Veteran's lay statements, and it uses the wrong standard. In this regard, because the presumption of aggravation attaches, the question to be addressed is whether there is clear and unmistakable evidence that there was no increase in severity or that the increase in severity was due to the natural progression of the disease.

Here, the December 2019 VA examiner opined that the Veteran's preexisting spinal condition was not aggravated in service because the Veteran's STRs are silent for back complaints, and the absence of documentation of recurring or persistent back problems from separation until 2012 (a period of 32 years) make it less likely than not that his current degenerative joint disease and spondylolisthesis are related to military service in any form. The Board finds that this rationale is inadequate because relying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007).

While the VA may endeavor to further develop medical evidence in this claim, to do so in this case would only serve the purpose of obtaining negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant).

Accordingly, and resolving reasonable doubt in the Veteran's favor, the presumption of aggravation has not been rebutted, and service connection for degenerative joint disease of the lumbar spine with neural foraminal stenosis and spondylolisthesis, claimed as a back condition, based upon aggravation of a pre-existing disability, is granted. 38 U.S.C. � 1153; 38 C.F.R. � 3.306.

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. A. Browne, 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.


judge_norm: JOHN J CROWLEY

disposition: denied

condition: ptsd

text:
Citation Nr: A26017000
Decision Date: 02/25/26	Archive Date: 02/25/26

DOCKET NO. 250530-555691
DATE: February 25, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder with alcohol use disorder, is denied.

FINDING OF FACT

The Veteran's obstructive sleep apnea was not incurred during his active military service nor is it secondary to service-connected posttraumatic stress disorder and is not otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea, including as due to service or service-connected posttraumatic stress disorder with alcohol use disorder, are not met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from March 2001 to March 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2025 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), Agency of Original Jurisdiction (AOJ).

In January 2025, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his obstructive sleep apnea disability most recently addressed in a November 2024 rating decision.  In January 2025, the AOJ issued the supplemental claim decision on appeal.

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the January 2025 AOJ decision on appeal.  38 C.F.R. � 20.301.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board.  38 C.F.R. �� 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. � 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection will be granted if the evidence demonstrates a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service.  38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including pertinent to service, establishes the disease was incurred in service.  38 C.F.R. � 3.303(d).

Service connection may also be granted on a secondary basis for a disability if it is due to or the result of a service-connected disease or injury.  38 C.F.R. � 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) a current disability exists and (2) 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).  An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition.  Id. at 447-48.  Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512-14 (1998).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Lynch v. McDonough, 999 F. 3rd 1391 (2021).

Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder.

The Veteran contends that he incurred OSA during active service and experienced continuous post-service disability.

He alternatively contends that his PTSD caused or aggravated his sleep disturbance.  See August 2025, Appellate Brief.

First, under the AMA, the Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error.  38 C.F.R. � 3.104 (c).  In the January 2025 rating decision, the AOJ made a favorable finding that the Veteran is service connected for PTSD and has a current diagnosis of OSA.  See also, January 2025, VA Sleep Apnea examination.

For any type of service connection, the first element must be met of a current disability.  The AOJ made a favorable finding of a current disability as discussed above and the record contains a competent diagnosis of obstructive sleep apnea; accordingly, competent evidence of a current disability is found.  See January 2025 VA Sleep Apnea examination.

Service treatment records (STRs) are silent for any complaints or treatment for any sleep disorder, daytime fatigue, or other sleep apnea-related symptoms.  A February 2004 Medical Assessment shows the Veteran reported he is in good health.

The Veteran was diagnosed as having mild OSA in a January 2023 sleep study, 18 years post-service.  At the time of the sleep study his weight was 225 pounds and body mass index was 27.4.

A November 2024 VA Sleep Apnea examiner confirmed the diagnosis of OSA and opined that the Veteran's OSA was less likely than not incurred in service nor was it caused by his service-connected PTSD.  The examiner also opined that while there is a correlation between PTSD and sleep apnea in a person, there is no pathophysiological link or cause for PTSD to cause OSA.  The examiner's rationale was that the obstruction causing the Veteran's OSA is due to his obesity which is considered a major risk factor for the development of OSA.  The examiner determined that the Veteran's obesity is most likely the cause of his OSA.  The examiner also found no evidence that the Veteran's current OSA is secondary to his PTSD.

A January 2025 VA Sleep Apnea examiner opined that the Veteran's OSA was more than likely due to other risk factors such as being overweight with a history of smoking.  The examiner opined that patients with more severe PTSD are more likely to have more severe OSA and those with severe OSA are more likely to have more severe PTSD.  However, for this Veteran with mild OSA, the examiner found that being overweight and a history of smoking were the likely causes of his OSA.

The Veteran submitted a January 2025 VA Form 21-4138, Statement in Support of Claim.  He cited literature and studies showing Veterans with PTSD have a higher prevalence of sleep disorders.  He also cited literature and studies showing that Veterans with severe mental disorders have higher incidences of sleep disorders.

The Veteran also submitted argument through his representative.  See August 2025, Appellate Brief.  The Veteran argues that the VA examinations are inadequate in that they do not properly address whether the Veteran's OSA is aggravated by his service-connected PTSD.

VA and private treatment records show the Veteran was not diagnosed with OSA until January 2023, nearly two decades after his separation from service in March 2005.  While the Veteran is competent to report having experienced symptoms of poor sleep since service, or his belief that his PTSD causes his OSA, or that his OSA is aggravated by his PTSD, he is not competent to provide an etiology for OSA.  The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F. 3d at 1377, 1377 n.4.

In this case, the Board finds the weight of the evidence is against the Veteran's claim.  While the Veteran submitted evidence of studies and literature relating PTSD and sleep disturbances, the Veteran is already compensated with a 70 percent disability rating from July 2024.  While his OSA is a separate sleep disability for which a Veteran can be service connected, in this case, his OSA is mild and the January 2025 VA examiner found that his OSA was less likely than not caused by his PTSD.  The VA examiner also concluded that the Veteran's weight and history of smoking were the likely causes of his OSA.  Also, while the Veteran believes the January 2025 VA examiner did not adequately discuss aggravation, the Board finds the examination adequate.  The Veteran was diagnosed with mild OSA.  His PTSD receives a 70 percent disability rating.  His OSA has not changed and is not severe.  See January 2025 VA Sleep Apnea examination.  Nor has his OSA risen in severity along with a rise in severity of his PTSD from the initial 50 percent rating to the 70 percent rating his is now assigned.  And again, OSA is a foremost risk factor of being overweight with a history of smoking as the examiner concluded.  While the Board would not dispute the fact that the Veteran's PTSD "could" aggravated this condition, the Board finds that the more likely cause of the entire condition are the risks factors cited by the VA medical opinion, supported by the treatment records.

Therefore, the Board finds the weight of the evidence is persuasively against the claim.  The post-service medical records provides highly probative evidence against this claim.

Accordingly, entitlement to service connection for obstructive sleep apnea, including as secondary to PTSD with alcohol use disorder, is denied.

The evidence in this case is not in approximate balance to warrant application of the benefit-of-the-doubt rule.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Raborn, S.

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.