KIDNEY DISABILITY

M. SORISIO · 2026 · Case ID: A26001058

MIXED

Summary

The veteran, who served on active duty from July 1990 to October 1990 and in the Army National Guard, appeals the denial of service connection for kidney disability, thyroid disability, bilateral hearing loss, and hypertension secondary to PTSD. The Board denied the claims for kidney disability, thyroid disability, and bilateral hearing loss, finding no current diagnosis or evidence meeting VA criteria for these conditions. For the kidney and thyroid claims, the Board noted favorable findings from the AOJ regarding TERA exposure and in-service complaints/findings, but concluded the evidence did not establish a current disability or symptoms causing functional impairment. For bilateral hearing loss, despite favorable AOJ findings on TERA exposure and a VA examiner's diagnosis of sensorineural hearing loss, the Board found the audiometric results did not meet VA criteria for a compensable disability. The Board granted service connection for hypertension secondary to PTSD, finding the private psychiatrist's opinion more probative than the VA examiner's. The Board found the evidence regarding hypertension secondary to PTSD to be in approximate balance, resolving doubt in the veteran's favor. The claim for a back disability was remanded due to a pre-decisional duty to assist error, as the AOJ made favorable findings of a current back disability and potential service connection, but no medical opinion was obtained to assess the nexus.

Service Branch

ARMY NATIONAL GUARD

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250718-558542

Full Decision Text

Citation Nr: A26001058
Decision Date: 01/06/26 Archive Date: 01/06/26

DOCKET NO. 250718-558542
DATE: January 6, 2026

ORDER

Service connection for a kidney disability is denied.

Service connection for a thyroid disability is denied.

Service connection for bilateral hearing loss is denied.

Service connection for hypertension, secondary to service-connected posttraumatic stress disorder (PTSD), is granted.

REMANDED

Entitlement to service connection for a back disability is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran has had a kidney disability at any time during or approximate to the pendency of the claim.

2. The evidence of record persuasively weighs against finding that the Veteran has had a thyroid disability at any time during or approximate to the pendency of the claim.

3. The evidence of record persuasively weighs against finding that the Veteran has a hearing loss disability in either ear as defined by VA regulations at any time during or approximate to the pendency of the claim.

4. Resolving reasonable doubt in the Veteran's favor, the evidence of record shows that the Veteran's hypertension is due to his service-connected PTSD.

CONCLUSIONS OF LAW

1. The criteria for service connection for a kidney disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a thyroid disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. Hypertension is caused by the service-connected PTSD. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1990 to October 1990. He also had periods of active duty for training (ACDUTRA) in the Army National Guard.

In September 2023, the Agency of Original Jurisdiction (AOJ) issued a rating decision denying the claims seeking service connection for a kidney disability, bilateral hearing loss, and a thyroid disability. In January 2024, the AOJ issued a rating decision denying the claims for service connection for hypertension and for a back condition.

In April 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the September 2023 and January 2024 decisions. In August 2024, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior September 2023 and January 2024 decisions.

In the July 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 September 2023 and January 2024 AOJ decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decisions, which were subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

For the service connection claims being granted and denied, 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.

In regard to the claim for service connection for a back disability, as the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103
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.

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. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995).

"Active military, naval, air, or space service" includes active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; or any period of inactive duty for training (INACDUTRA) in which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the claimant prevailing in either event, or whether the weight of the evidence is persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

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 to the claimant.

Entitlement to service connection for a kidney disability.

The Veteran asserts that he has a kidney disability that is related to service.

In the August 2024 rating decision the AOJ made a favorable finding that a qualifying event, injury or disease had its onset during the Veteran's service as a September 1994 National Guard examination report noted that the Veteran would consult a kidney specialist for a check-up of albuminuria. The AOJ also made a favorable finding that the Veteran participated in a toxic exposure risk activity (TERA) based on his service as a cannon crew member that may have exposed him to fuel, solvent, and fumes. The Board is bound by these favorable findings. 38 C.F.R. § 3.104.

The question for the Board is whether the Veteran has a current disability that is related to an injury or disease incurred during a period of ACDUTRA or an injury incurred during a period of
a qualifying event, injury or disease had its onset during the Veteran's service as a September 1994 National Guard examination report noted that the Veteran would consult a kidney specialist for a check-up of albuminuria. The AOJ also made a favorable finding that the Veteran participated in a toxic exposure risk activity (TERA) based on his service as a cannon crew member that may have exposed him to fuel, solvent, and fumes. The Board is bound by these favorable findings. 38 C.F.R. § 3.104.

The Board concludes that the Veteran does not have a current diagnosis of a kidney disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In his July 2022 application for disability compensation, the Veteran indicated that he had albuminuria (kidney) that began in 1990.

The available medical evidence of record fails to show that the Veteran has a current diagnosis of a kidney condition, to include albuminuria. Rather the evidence weighs against a finding of a current disability. In this regard, an August 2023 VA treatment record indicated that laboratory results relating to kidney function were normal. Although the Veteran's representative has argued that the evidence establishes that the Veteran has a current kidney disability, he has not pointed to or provided any evidence that establishes the presence of such a disability.

The Veteran is competent to report symptoms perceived through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not been shown to possess the medical training or credentials to competently diagnose a kidney disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Veteran has also not asserted that he has a manifestation of a kidney disability such as pain or functional impairment of earning capacity due to a kidney disability. When pain causes functional impairment, a disability for VA compensation purposes can exist for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, as the Veteran has not asserted that he experiences any pain or functional impairment due to a kidney disability, Saunders is not applicable in this case.

VA has not obtained a medical opinion regarding the claim for a kidney disability, but the Board finds that in this case, VA does not have a duty to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, there is no evidence of a kidney disability during the pendency of or contemporaneous to the claim. Accordingly, there is no duty to obtain a medical opinion regarding the etiology of a kidney disability, including based on the Veteran's TERA. 38 U.S.C. §§ 1168, 5103A; 38 C.F.R. § 3.159.

An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). As there is no competent evidence that the Veteran has a diagnosis of a kidney disability, or symptoms causing functional impairment of earning capacity, service connection for a kidney disability must be denied.

Entitlement to service connection for a thyroid disability.

The Veteran asserts that he has a thyroid disability that is related to service.

In the August 2024 rating decision, the AOJ made a favorable finding that a September 1994 service examination report shows a complaint regarding the thyroid. The AOJ also made a favorable finding that the Veteran participated in a TERA based on his service as a cannon crew member that may have exposed him to fuel, solvent, and fumes. The Board is bound by these favorable findings. 38 C.F.R. § 3.104.

The question for the Board is whether the Veteran has a current disability of the thyroid that is related to an injury or disease incurred during a period of ACDUTRA or an injury incurred during a period
The Veteran asserts that he has a thyroid disability that is related to service.

The Board concludes that the Veteran does not have a current diagnosis of a thyroid disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321.

In his July 2022 application for disability compensation, the Veteran indicated that he had a thyroid disability that began in 1990. A September 1994 National Guard examination report reflects that the thyroid was not palpable.

The available medical evidence of record fails to show that the Veteran has a current diagnosis of a thyroid condition. Although the Veteran's representative has argued that the evidence establishes that the Veteran has a current thyroid disability, he has not pointed to or provided any evidence that establishes the presence of such a disability.

The Veteran is competent to report symptoms perceived through his senses. However, the Veteran has not been shown to possess the medical training or credentials to competently diagnose a thyroid disorder. See Jandreau, 492 F.3d at1376-77. The Veteran also has not asserted that he has a manifestation of a thyroid disability such as pain or functional impairment of earning capacity due to thyroid disorder symptoms. See Saunders, 886 F.3d 1356.

VA has not obtained a medical opinion regarding the claim for a thyroid disability, but the Board finds that in this case, VA does not have a duty to obtain one. See McLendon, 20 Vet. App. at 83. In this case, as there is no evidence of a thyroid disability, there is no duty to obtain a medical opinion regarding the etiology of a thyroid disability, including based on the Veteran's TERA. 38 U.S.C. §§ 1168, 5103A; 38 C.F.R. § 3.159.

An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Brammer, 3 Vet. App. at 225. As there is no competent evidence that the Veteran has a diagnosis of a thyroid disability, or symptoms resulting in functional impairment of earning capacity, service connection for a thyroid disability must be denied.

Entitlement to service connection for bilateral hearing loss.

The Veteran asserts that he is entitled to service connection for bilateral hearing loss.

In the August 2024 rating decision, the AOJ made favorable findings that the Veteran had a TERA, had a high probability of hazardous noise exposure due to his military occupational specialty as a cannon crewmember, and that there was a nexus, or link between the in-service noise exposure and any hearing loss based on an October 2022 VA examiner's opinion. The Board is bound by these favorable findings. 38 C.F.R. § 3.104. The AOJ also made a favorable finding that the Veteran has a diagnosis of sensorineural hearing loss in the frequency range of 500 to 4000 Hertz based on audiometry performed during the October 2022 VA examination. The binding nature of this finding will be discussed further below.

The question for the Board is whether the Veteran has a current hearing loss disability in either ear for VA purposes that is related to an injury or disease incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA, including hazardous noise exposure.

Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes that meets the VA criteria for a grant of
or an injury incurred during a period of INACDUTRA, including hazardous noise exposure.

The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes that meets the VA criteria for a grant of service connection and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321.

The Veteran underwent a VA examination in October 2022, which revealed puretone thresholds, in decibels, as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 25 20 20 30 35

LEFT 25 20 20 30 25

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear.

Based on the test results, the examiner found the Veteran had sensorineural hearing loss (in the frequency range of 500 to 4000 Hertz) in the right and left ears. An asterisk with this finding on the examination report explains that "the Veteran may have hearing loss at a level that is not considered to be a disability for VA purposes."

As noted above, hearing loss for VA purposes requires auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz to be 40 decibels or more; or the thresholds for at least three of these frequencies to be 26 decibels or greater; or speech recognition scores using the Maryland CNC Test to be less than 94 percent. In this case, the October 2022 VA examination results reflect that the Veteran does not have a current hearing loss disability meeting the VA criteria for service connection for hearing loss in either ear. The Veteran did not have any auditory thresholds of 40 decibels or more in either ear, thresholds in at least three frequencies above 26 decibels or greater in either ear, or speech recognition scores of not less than 94 percent in either ear. The puretone test was noted to be valid for rating purposes. There is no other competent evidence of record indicating that the Veteran had a hearing loss disability in either ear for VA purposes during the appeal period.

Regarding the AOJ's favorable finding that the Veteran has bilateral sensorineural hearing loss based on the October 2022 VA examination, the VA examination does indicate that the Veteran has sensorineural hearing loss in the frequencies of 500 to 4000 Hertz. However, as indicated on the examination report, this diagnosis does not necessarily mean that the hearing loss noted meets the criteria to be a hearing loss disability for VA purposes. The AOJ's favorable finding also did not indicate that the hearing loss noted on the October 2022 VA examination report met the criteria to be hearing loss for VA purposes in either ear. In fact, the AOJ also stated that the audiometric findings did not meet the criteria for a grant of service connection for defective hearing. See 38 C.F.R. § 3.385. Thus, the favorable finding is correct. However, as explained above, the October 2022 audiometry findings do not reflect that the Veteran's hearing loss in either ear meets the criteria to be a disability for VA purposes.

The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had a hearing loss disability meeting the VA criteria for hearing loss in either ear at any point during the appeal period. In the absence of audiometric findings that show hearing loss meeting the audiometric criteria for a hearing loss disability under 38 C.F.R. § 3.385, service connection cannot be granted for hearing loss under any theory of entitlement.

While the Veteran believes he has a current diagnosis of hearing loss meeting the VA audiometric criteria, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires specialized medical education and the ability
.C. § 1110. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had a hearing loss disability meeting the VA criteria for hearing loss in either ear at any point during the appeal period. In the absence of audiometric findings that show hearing loss meeting the audiometric criteria for a hearing loss disability under 38 C.F.R. § 3.385, service connection cannot be granted for hearing loss under any theory of entitlement.

While the Veteran believes he has a current diagnosis of hearing loss meeting the VA audiometric criteria, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. Consequently, the Board assigns greater probative weight to the October 2022 VA examination results.

Without evidence of a current hearing loss disability as defined by the VA regulations, the Board finds that the evidence weighs persuasively against the claim for service connection.

The Board acknowledges that in the April 2024 HLR request, the Veteran's attorney indicated that a new examination should be obtained because the Veteran's hearing loss is more severe than the previous audiological testing showed. Additionally, in the VA Form 10182, the Veteran's attorney argued that a new exam should be ordered since it has been nearly three years since the Veteran's last exam. However, these arguments were made after the September 2023 rating decision, and the Veteran's representative did not indicate that evidence prior to the September 2023 rating decision reflected worsening hearing loss since the October 2022 VA examination or any other reason for a new examination to be requested. Thus, there is not a pre-decisional duty to assist error in the AOJ not getting another VA examination. Although the Veteran's attorney has not specifically argued that the VA examination is inadequate, the Board finds that it is adequate regarding the question of whether the Veteran has a current hearing loss disability as all necessary testing was completed and there is no indication that there were any inaccuracies or insufficiencies regarding such testing. Therefore, the Board finds that remand is not warranted to obtain a new VA examination as there is no pre-decisional duty to assist error.

As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for bilateral hearing loss is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to service connection for hypertension secondary to PTSD.

The Veteran has asserted that he has hypertension secondary to his service-connected PTSD.

The August 2024 rating decision reflects that the AOJ made the favorable finding that the Veteran has been diagnosed with high blood pressure. The Board is bound by this favorable finding. The Veteran's medical treatment records reflect that he has been diagnosed with primary hypertension. See July 2023 private treatment record.

In a May 2023 private medical opinion, a non-VA psychiatrist opined that the Veteran's hypertension is at least as likely as not proximately due to and aggravated by his service-connected PTSD. The psychiatrist stated that the Veteran's PTSD symptoms pre-existed his diagnosis of hypertension and that PTSD through a mechanism of increased adrenic tone and HPA axis dysfunction mediated by the hyperarousal, nightmares, and increased vigilance associated with PTSD have led to the development of hypertension. In the rationale, the psychiatrist stated that multiple studies have shown that patients with PTSD have an increased heart rate, increased startle reaction, and increased blood pressure as responses to PTSD Criterion B intrusion symptoms. The psychiatrist cited several medical studies indicating that PTSD causes and aggravates hypertension, including a study indicating that hyperregulation of the HPA axis differs from the neuroendocrine activity usually seen during stress and this is what leads to hypertension and other cardiovascular pathologies. The psychiatrist further stated that the risk factors for developing hypertension for which the Veteran is positive are related to treatment for service-connected PTSD.

In a July 2023 opinion, a VA examiner opined that the claimed high blood pressure secondary to PTSD is less likely than not proximately due to or the result of PTSD. The VA examiner stated that the private psychiatrist's opinion regarding increased adrenergic tone and HPA axis dysfunction described the fight or flight response and not hypertension. The VA examiner stated that there is no medical research that confirms that stress causes long-term high blood pressure. Hypertension is diagnosed based on the average of two or more readings taken on separate occasions. Isolated elevations such as after exercise or
The psychiatrist further stated that the risk factors for developing hypertension for which the Veteran is positive are related to treatment for service-connected PTSD.

In a July 2023 opinion, a VA examiner opined that the claimed high blood pressure secondary to PTSD is less likely than not proximately due to or the result of PTSD. The VA examiner stated that the private psychiatrist's opinion regarding increased adrenergic tone and HPA axis dysfunction described the fight or flight response and not hypertension. The VA examiner stated that there is no medical research that confirms that stress causes long-term high blood pressure. Hypertension is diagnosed based on the average of two or more readings taken on separate occasions. Isolated elevations such as after exercise or during an anxiety attack are not diagnostic of hypertension.

Both the May 2023 and July 2023 opinions include a full rationale in support of the opinions consistent with the medical evidence of record. Therefore, the Board finds that both of the opinions have probative value. The Board notes that the July 2023 VA examiner did not fully address the rationale in the May 2023 private medical opinion. Specifically, the private opinion cited medical literature indicating a link between hypertension and PTSD, but the VA examiner stated that there is no medical research that confirms that stress causes long-term high blood pressure without citing medical literature. Therefore, the Board finds the May 2023 private medical opinion to be more probative than the July 2023 VA opinion.

The Board notes that the Veteran and his representative have not asserted, and the evidence does not indicate, that he has hypertension as a result of his active service on a direct basis.

Based on a full review of the evidence of record, the Board finds the evidence to at least be in approximate balance as to whether the Veteran's current hypertension is due to the service-connected PTSD. As noted above, the Board finds that the May 2023 private medical opinion indicating that the Veteran's hypertension was caused by PTSD is more probative than the July 2023 VA opinion finding that there was not a nexus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the Veteran's hypertension is caused by his service-connected PTSD. Therefore, service connection for hypertension, secondary to PTSD, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

Entitlement to service connection for a back disability.

The Board finds that the claim for service connection for a back disability must be remanded due to a pre-decisional duty to assist error.

In the August 2024 rating decision, the AOJ made the favorable finding that the Veteran has a disability of low back pain. The Board is bound by this favorable finding. A July 2023 VA treatment record reflects that the Veteran has chronic back pain.

In a June 2023 statement, the Veteran stated that as a cannon crewmember, he performed multiple tasks from driving the armored vehicles to rough terrains, to preparing ammunition to be fired down range. He stated that he injured his back on numerous occasions due to heavy lifting or strenuous work such as digging foxholes, setting up camo nets, and loading 200 pound rounds repeatedly. He stated that he would take breaks but for the most part he was commanded to press on to get the job done.

In a June 2023 lay witness statement, L.C. stated that he served with the Veteran in the National Guard around 1992 to 1994. He stated that as cannon crewmembers they loaded 200 pound ammunition rounds. He stated that he remembered several occasions when the Veteran would complain that his back was hurting him from having to pick up the rounds. He would have to sit for periods of time and then sometimes after breaks would still not be able to lift the rounds due to pain in his back.

The Veteran's service treatment records, including National Guard examination reports, do not note any complaints relating to the back during any periods of active duty, ACDUTRA, or INACDUTRA. However, as a lay person, the Veteran is competent to report having had symptoms of back pain in service due to heavy lifting.

In this case, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a back disability because no VA examiner has opined on the etiology of the disability. VA's duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 83 86 (2006). The threshold for finding a link between a current disability and service is low. Id. at 83.

The AOJ made the favorable finding that the Veteran had a back disability, and he has asserted that his low back disability may be related to heavy lifting in service, which is consistent with his MOS as a cannon crewmember. The Veteran is also competent to report having had back symptoms in service. Therefore, the Board finds that there is competent evidence that the appellant has a current back disability that may have been incurred in or aggravated by a repetitive type injury during active duty, or a period of ACDUTRA or INACDUTRA. Accordingly, a medical examination and opinion are necessary to make a decision on the claim.

This constitutes a pre-decisional duty to assist error, and the claim must be remanded so that the appellant can be afforded the appropriate examination and medical opinion prior to adjudication. 38 C.F.R. § 20.802(a).?

The matter is REMANDED for the following action:

Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below.

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

Is the Veteran's back disability, to include any pain that causes functional impairment, at least as likely as not related (likelihood is at least approximately balanced or nearly equal, if not higher) to service, including heavy lifting during his duties as a cannon crewmember during active duty from July 1990 to October 1990 or during a period of ACDUTRA or INACDUTRA?

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A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Marenna, 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.

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