Back to BVA DecisionsGRANTEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 20-21 415
TUBERCULOSIS OF THE PLEURA
BETHANY L. BUCK · 2025 · Case ID: 25014487
Summary
The Veteran served from May 1982 to April 2003. This case comes before the Board of Veterans' Appeals (Board) following a prior remand for further development regarding service connection for a pulmonary nodule of the lungs and obstructive sleep apnea (OSA). The Veteran appealed the denial of service connection for the pulmonary nodule and sought service connection for OSA, including as secondary to several service-connected musculoskeletal conditions: intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) of the cervical spine, plantar fasciitis, and degenerative arthritis of the lumbar spine. The Board found that the Veteran's pulmonary nodule was at least as likely as not related to service, citing medical opinions that linked it to in-service pneumonia and bronchitis. Service connection for the pulmonary nodule was granted. For OSA, the Board found that while the Veteran was diagnosed after service, her in-service complaints of bronchitis and pneumonia, along with lay testimony, established the second element for service connection. After multiple remands for inadequate medical opinions, a final VA medical opinion concluded that the Veteran's OSA was at least as likely as not aggravated by her service-connected musculoskeletal disabilities due to pain and its effects on sleep and earning capacity. Therefore, service connection for OSA was granted on a secondary basis.
Rationale
Current diagnosis of pulmonary nodule; In-service pneumonia and bronchitis noted in STRs; VA medical opinion found resolving pneumonia and bronchitis to be possible etiologies for pulmonary nodules; Positive nexus opinion from VA examiner
Full Decision Text
Citation Nr: 25014487 Decision Date: 12/03/25 Archive Date: 12/03/25 DOCKET NO. 20-21 415 DATE: December 3, 2025 ORDER Entitlement to service connection for pulmonary nodule of the lungs is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD), cervical spine, plantar fasciitis and degenerative arthritis of the lumbar spine, is granted. FINDINGS OF FACT 1. The Veteran's diagnosed pulmonary nodules of the lungs is at least as likely as not related to service. 2. The Veteran's OSA is at least as likely as not aggravated beyond its natural progression by her service-connected IVDS with DDD, cervical spine, plantar fasciitis and degenerative arthritis of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for pulmonary nodule of the lungs have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1982 to April 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision from a Department of Veteran Affairs (VA) Regional Office (RO) in the legacy system of appeals, i.e., the system in place for appealing decisions issued by the RO prior to February 19, 2019. The Veteran requested a video hearing before a Veterans Law Judge (VLJ) in her April 2020 substantive appeal. The Veteran testified at a hearing before the undersigned VLJ in October 2021. A transcript of the hearing has been associated with the claims file. In a January 2024 Board Decision, new and material evidence was found to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss (BHL), and the merits of the underlying claim were remanded for additional development; service connection for sleep apnea was also remanded, and; service connection for pulmonary nodule of the lungs was denied. The Veteran appealed the denial of service connection for pulmonary nodule to the lungs to the Court of Appeals of Veterans Claims (Court). In January 2025, VA and the Veteran filed a joint motion for partial remand (JMPR), which was granted by the Court, requesting further development and readjudication of service connection for pulmonary nodule of the lungs. The Court did not disturb the Board's favorable finding that new and material evidence was received sufficient to reopen the prior final denial of service connection for BHL. See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2009) (noting that the Court cannot reverse favorable findings of fact). The court also held it lacked jurisdiction to review the Board's remand of entitlement to service connection for BHL and sleep apnea. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (the Court lacks jurisdiction to review Board remands). In an October 2024 rating decision, service connection was granted for BHL. Therefore, it is no longer before the Board. At the same time, the RO issued a supplemental statement of the case (SSOC) that continued the denial of service connection for OSA. In May 2025, the Board remanded the claims for further development. First, the May 2018 VA medical examiner did not provide a fully informed opinion, as they did not address documentation in the Veteran's service treatment records (STRs) from April 14, 1983 of pneumonia, and December 11, 1991 of bronchitis. Second, a January 2024 VA medical addendum opinion did not specifically address any of the cited documents referred to in the January 2024 remand directives, and the rationale was conclusory. The Veteran's representative also contended the Veteran was entitled to secondary service connection for her OSA. In October 2025, an SSOC was issued denying the claims. The matters now return to the Board for further consideration. As a matter of procedure, the Board finds there was substantial compliance with the prior remand directives sufficient to proceed to a decision. Steg service treatment records (STRs) from April 14, 1983 of pneumonia, and December 11, 1991 of bronchitis. Second, a January 2024 VA medical addendum opinion did not specifically address any of the cited documents referred to in the January 2024 remand directives, and the rationale was conclusory. The Veteran's representative also contended the Veteran was entitled to secondary service connection for her OSA. In October 2025, an SSOC was issued denying the claims. The matters now return to the Board for further consideration. As a matter of procedure, the Board finds there was substantial compliance with the prior remand directives sufficient to proceed to a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Sheddon v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In deciding the Veteran's claim, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether the persuasive evidence is against the claim, in which case the claim is denied. 38 U.S.S. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for pulmonary nodule of the lungs. The Veteran contends that she developed a pulmonary nodule of the lung while she was in service. At the October 2021 Board hearing, the Veteran testified that there was an incident when the Veteran first got pneumonia, while in service, and; she was never told that she had a lung nodule while in service. In May 2018, the Veteran was afforded a VA medical examination to ascertain the nature and etiology of her pulmonary nodule of the lungs. The examiner confirmed the Veteran's diagnosis of pulmonary nodules from January 2018. The Veteran's private medical treatment records confirm she is receiving treatment for this condition and has been receiving follow up care for this, as well. See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date 11/19/2019, page 4 of 40. As such, the first element required for service connection has been met. The Veteran's service treatment records (STRs) do not demonstrate lung nodules while in service. However, her STRs contain documentation from April 14, 1983, noting resolving pneumonia. See VBMS, document labeled STR- Medical, receipt date 2/8/2003, page 74 of 95. There is also an STR notation from December 11, 1991 of an assessment of bronchitis. See VBMS, document labeled STR- Medical, receipt date 2/8/2003, page 9 of 95. As previously explained, in a May 2018 VA medical examination, the VA medical examiner provided a negative nexus medical opinion, and explained there was no evidence of prior pulmonary infections in the Veteran's medical records while in service, despite the aforementioned notations in the Veteran's STRs from April 14, 1983 of pneumonia, and December 11, 1991 of bronchitis. The Board found the medical opinion inadequate as it was not fully informed, and a duty to assist error occurred. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an opinion is adequate where, inter alia, it is based upon consideration of the veteran's prior medical history). 2. Following the May 2025 Board remand, in May 2025, a VA medical opinion was obtained. The examiner provided a negative nexus medical opinion. Specifically, the examiner explained that the Veteran's pulmonary nodule the Veteran's STRs from April 14, 1983 of pneumonia, and December 11, 1991 of bronchitis. The Board found the medical opinion inadequate as it was not fully informed, and a duty to assist error occurred. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an opinion is adequate where, inter alia, it is based upon consideration of the veteran's prior medical history). 2. Following the May 2025 Board remand, in May 2025, a VA medical opinion was obtained. The examiner provided a negative nexus medical opinion. Specifically, the examiner explained that the Veteran's pulmonary nodule of the lungs was not found in the records until 2017, and that upon review of the Veteran's STRs, there is not enough evidence to substantiate a claim of pulmonary nodule of the lungs. A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Consequently, the Board finds this medical opinion is inadequate. In August 2025 and December 2025, addendum VA medical opinions were obtained for the examiner to specifically address the aforementioned notations in the Veteran's STRs. In August 2025, the examiner opined the specific conditions of resolving pneumonia and bronchitis can be possible etiologies for pulmonary nodules. The examiner cited to Open Evidence, that infectious etiologies, including bacterial, mycoplasma, viral, and fungal pneumonias, are well-documented causes of pulmonary nodules, particularly centrilobular nodules seen on high-resolution CT. For example, mycoplasma pneumonia frequently presents with centrilobular nodules, which are more readily detected on CT than on chest radiography, and these nodules often resolve with appropriate antimicrobial therapy. Viral and fungal pneumonias can also manifest as multiple small nodules, especially in immunocompromised patients. Granulomatous infections (e.g., tuberculosis, histoplasmosis) may present as solitary or multiple nodules, sometimes with satellite nodules, and are a key consideration in the differential diagnosis of pulmonary nodules. In rare cases, round pneumonia can mimic a solitary pulmonary nodule, particularly in adults, and should be considered in the appropriate clinical context. The examiner also cited to the American College of Chest Physicians and the American College of Radiology both recognize that infectious and inflammatory processes are common benign causes of pulmonary nodules, especially in younger or immunocompetent patients, and recommend that clinical context and imagining features guide management. As the examiner opined that resolving pneumonia and bronchitis can be possible etiologies for pulmonary nodules, an addendum medical opinion was requested to provide more clarity (emphasis added). The Board notes that while the examiner did not specifically cite to the April 14, 1983, and December 11, 1991 notations in the Veteran's STRs, she provides a somewhat positive rationale in explaining that resolving pneumonia and bronchitis can be possible etiologies for pulmonary nodules. The Board notes that the examiner's citation to "resolving pneumonia and bronchitis" are the specific notations in the Veteran's STRs (i.e., April 14, 1983 documents resolving pneumonia, and December 11, 1991 documents an assessment of bronchitis). In October 2025, the same VA medical examiner provided another positive medical nexus opinion. Specifically, the examiner opined that specific conditions of resolving pneumonia and bronchitis are at least as likely as not etiologies for the pulmonary nodules. The examiner provided the same rationale as her August 2025 medical opinion. As the examiner reviewed the Veteran's military medical treatment records, post-military medical treatment records, took into consideration the Veteran's lay statements and reconciled her rationale with substantiated reasoning with supported medical facts from the Veteran's claims file, the Board affords this opinion probative weight. In sum, the Veteran has established entitlement to service connection for pulmonary nodule of the lungs. The evidence supports finding it was incurred during service and there is medical evidence establishing a nexus. Accordingly, service connection is granted for pulmonary nodule of the lungs. 38 C.F.R. § 3.303. 3. Entitlement to service connection for OSA, to include as secondary to service-connected IVDS with DDD, cervical spine, plantar fasciitis and degenerative arthritis of the lumbar spine. The Veteran and her husband testified that she has OSA and reconciled her rationale with substantiated reasoning with supported medical facts from the Veteran's claims file, the Board affords this opinion probative weight. In sum, the Veteran has established entitlement to service connection for pulmonary nodule of the lungs. The evidence supports finding it was incurred during service and there is medical evidence establishing a nexus. Accordingly, service connection is granted for pulmonary nodule of the lungs. 38 C.F.R. § 3.303. 3. Entitlement to service connection for OSA, to include as secondary to service-connected IVDS with DDD, cervical spine, plantar fasciitis and degenerative arthritis of the lumbar spine. The Veteran and her husband testified that she has OSA that began during service. At the October 2021 Board hearing, the Veteran and her husband testified that she snored loudly and experienced daytime fatigue while she was in service, but; she was not diagnosed until after she left service. The Veteran underwent a sleep study in February 2018, where she was diagnosed with moderately severe OSA. See VBMS, document labeled Medical Treatment Record- Non-Government Facility, receipt date 3/22/2018, page 2 of 10. As such, the first element required for service connection has been met. At the October 2021 Board hearing, the Veteran testified that she had issues of respiratory conditions while in service, including daytime fatigue. She explained the respiratory conditions that she was treated for, while in service, were bronchitis/pneumonia. A review of the Veteran's STRs confirms her medical reports of pneumonia and bronchitis. See VBMS, document labeled STR- Medical, receipt date 2/8/2003, page 74 of 95; see VBMS, document labeled STR- Medical, receipt date 2/8/2003, page 9 of 102. The Veteran also provided lay testimony as to her in-service symptoms. Therefore, the second element required for service connection has been met. In February 2020, the Veteran was afforded a VA medical examination to determine the nature and etiology of her OSA. The clinician confirmed the Veteran's diagnosis but provided a negative medical nexus opinion based on a lack of documentation in the Veteran's STRs for any complaints of snoring or sleep disturbances. However, the clinician did not review the Veteran's STRs regarding her in-service symptoms of bronchitis and pneumonia, nor the buddy/lay statements from the Veteran's husband and sister, which were submitted in July 2020, which were after the examination, documenting their observations of the Veteran's sleeping habits and the symptoms she displayed. As such, the VA clinician provided a very limited and narrow insight as to the Veteran's condition. Consequently, the January 2024 Board decision found the opinion inadequate and remanded the matter for an addendum medical opinion. In January 2024, an addendum medical opinion was obtained. The examiner provided a negative nexus medical opinion. While the examiner noted that the remand letter dated January 9, 2024 was reviewed (i.e., specifically referring to the January 2024 Board Decision), the examiner did not specifically address any of the cited documents referred to in the January 2024 remand directives. The examiner provided a very broad and general explanation that evidence was reviewed supporting the claim and rationale, and that while all was reviewed, none substantiated the claim. Consequently, the May 2025 Board Decision found the rationale conclusory without a factual predicate, which did not explain the discrepancies of the Veteran's husband's and sister's statements, including the respiratory conditions the Veteran experienced during her military service and were noted in her STRs. In an April 2025 IHP, the Veteran's representative specifically refers to the fact that the Veteran has several service-connected musculoskeletal disabilities. Specifically, he contends that pain and sleep influence each other in many ways, and the relationship between them seems to be bidirectional. The representative specifically cited to an article from the National Library of Medicine, National Center for Biotechnology Information that chronic widespread musculoskeletal pain in patients with sleep apnea and the relationship between sleep disorder and pain level, quality of life, and disability. The representative did not specifically mention which service-connected musculoskeletal disabilities, which is why the Board interpreted them to be IVDS, plantar fasciitis, and degenerative arthritis of the lumbosacral spine. The Board also interpreted the representative's contention for OSA as one for secondary service connection due to her service-connected musculoskeletal disabilities. As such, in May 2025, the Board remanded the matter to obtain an addendum medical opinion for secondary service connection. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result culoskeletal pain in patients with sleep apnea and the relationship between sleep disorder and pain level, quality of life, and disability. The representative did not specifically mention which service-connected musculoskeletal disabilities, which is why the Board interpreted them to be IVDS, plantar fasciitis, and degenerative arthritis of the lumbosacral spine. The Board also interpreted the representative's contention for OSA as one for secondary service connection due to her service-connected musculoskeletal disabilities. As such, in May 2025, the Board remanded the matter to obtain an addendum medical opinion for secondary service connection. Service connection may also be established on a secondary basis for a disability which is proximately 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) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 310(b). In June 2025, VA obtained an addendum medical opinion as to whether it is at least as likely as not the Veteran' OSA had its onset in or is otherwise related to her military service. The examiner provided a negative nexus opinion and explained the Veteran's claimed OSA is not found in the records until 2018, and that upon review of STRs, there is not enough evidence to substantiate claim of sleep apnea. The Board finds that the VA examiner's opinion is inadequate because they relied on lack of notation in the Veteran's STRs of an OSA diagnosis, and omitted discussion of the Veteran's lay statements (to include statements from the Veteran's husband and sister). See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination is inadequate where the examiner relied on lack of evidence in STRs to provide negative opinion). Consequently, the Board does not afford this opinion probative weight. Regarding secondary service connection, in June 2025, VA obtained an addendum medical opinion, as well. The examiner provided a negative nexus medical opinion and explained that research does not support musculoskeletal conditions/injuries, such as IVDS with DDD, cervical spine, as a cause of OSA. Factors, such as obesity, alcohol, certain medications, diabetes, hypertension, and aging, are contributing factors that may cause or aggravate OSA. Therefore, there is no accepted evidence based medical studies that currently link OSA to musculoskeletal conditions/injuries, such as IVDS with DDD, cervical spine, as the pathophysiology of both conditions do not have an intersection and a nexus cannot be made. The examiner also cited to the Mayo Clinic (2022), that OSA has a clear etiology due to when throat and tongue muscles are more relaxed, the soft tissues can cause the airway to become blocked. In adults, the cause of OSA is excess weight and obesity. In this case, the Veteran was obese prior to the diagnosis of OSA. However, the Board notes the examiner did not address the aggravation element required for secondary service connection. As such, in August 2025, VA obtained another addendum medical opinion. The examiner opined the Veteran's OSA can be aggravated by musculoskeletal disabilities due to the pain caused by them and its effects on the Veteran's sleep habits, including additional impairment of earning capacity due to lack of sleep and chronic pain. The Board notes that although the examiner provided a positive medical opinion, she explained the Veteran's OSA "can" be aggravated, which does not meet the legal standard as "is as likely as not." Consequently, in October 2025, VA obtained another addendum medical opinion for clarification. The same examiner provided a positive medical nexus opinion that the Veteran's OSA was at least as likely as not aggravated beyond its natural progression by musculoskeletal disabilities, due to the pain caused by them and its effects on the Veteran's sleep habits, including additional impairment of earning capacity due to lack of sleep and chronic pain. As the examiner reviewed the Veteran's military medical treatment records, post-military medical treatment records, took into consideration the Veteran's lay statements and reconciled their rationale with substantiated reasoning with supported medical facts from the Veteran's claims file, the Board affords this opinion probative weight. As there is a probative medical Consequently, in October 2025, VA obtained another addendum medical opinion for clarification. The same examiner provided a positive medical nexus opinion that the Veteran's OSA was at least as likely as not aggravated beyond its natural progression by musculoskeletal disabilities, due to the pain caused by them and its effects on the Veteran's sleep habits, including additional impairment of earning capacity due to lack of sleep and chronic pain. As the examiner reviewed the Veteran's military medical treatment records, post-military medical treatment records, took into consideration the Veteran's lay statements and reconciled their rationale with substantiated reasoning with supported medical facts from the Veteran's claims file, the Board affords this opinion probative weight. As there is a probative medical opinion that finds the Veteran's OSA is at least as likely as not aggravated by her service-connected musculoskeletal disabilities, the Board finds that the benefit of the doubt goes to the Veteran. Service connection is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith, 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.