LIVER DISEASE

MARIAH N. SIM · 2026 · Case ID: A26028875

MIXED

Summary

The veteran, an Army veteran who served from September 1987 to December 1996, including service in the Southwest Asia Theater of Operations, appeals the denial of service connection for liver disease, diabetes mellitus type II, hypertension, depression, and sleep apnea. The Board found that new and relevant evidence was submitted, warranting readjudication of these claims. For persistent depressive disorder, the Board found the veteran had a current diagnosis and that the condition was etiologically related to service, granting service connection. This was based on a private psychological evaluation that found the disorder as likely as not service-related, supported by the veteran's testimony of in-service depression and stress, and the Board's finding that a prior VA examination was inadequate. For hypertension and sleep apnea, the Board found the private medical opinion probative, opining they were the result of service-connected persistent depressive disorder, which the Board found to be service-connected. The Board found prior VA examinations for these conditions inadequate due to lack of rationale and failure to address secondary service connection. The claims for liver disease and diabetes mellitus type II were remanded for initial adjudication by the agency of original jurisdiction, as new and relevant evidence was received, including the veteran's testimony of in-service symptoms and a 1989 glucose reading, which had not been previously addressed.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210429-156557

Full Decision Text

Citation Nr: A26028875
Decision Date: 03/31/26 Archive Date: 03/31/26

DOCKET NO. 210429-156557
DATE: March 31, 2026

ORDER

New and relevant evidence has been received, and the Veteran's claim of service connection for liver disease shall be readjudicated.

New and relevant evidence has been received, and the Veteran's claim of service connection for diabetes mellitus, type II, shall be readjudicated.

New and relevant evidence has been received, and the Veteran's claim of service connection for hypertension shall be readjudicated.

New and relevant evidence has been received, and the Veteran's claim of service connection for depression shall be readjudicated.

New and relevant evidence has been received, and the Veteran's claim of service connection for sleep apnea shall be readjudicated.

Entitlement to service connection for persistent depressive disorder is granted.

Entitlement to service connection for hypertension, to include as secondary to service-connected persistent depressive disorder, is granted.

Entitlement to service connection for sleep apnea, to include as secondary to service-connected persistent depressive disorder, is granted.

REMANDED

Entitlement to service connection for a liver disease is remanded.

Entitlement to service connection for diabetes mellitus, type II, is remanded.

FINDINGS OF FACT

1. New evidence was received that was relevant sufficient to readjudicate the previously denied issue of entitlement to service connection for liver disease.

2. New evidence was received that was relevant sufficient to readjudicate the previously denied issue of entitlement to service connection for diabetes mellitus, type II.

3. New evidence was received that was relevant sufficient to readjudicate the previously denied issue of entitlement to service connection for hypertension.

4. New evidence was received that was relevant sufficient to readjudicate the previously denied issue of entitlement to service connection for depression.

5. New evidence was received that was relevant sufficient to readjudicate the previously denied issue of entitlement to service connection for sleep apnea.

6. Resolving reasonable doubt in the Veteran's favor, his persistent depressive disorder is etiologically related to his active service.

7. Resolving all doubt in favor of the Veteran, his hypertension was caused or aggravated by his service-connected persistent depressive disorder.

8. Resolving all doubt in favor of the Veteran, his sleep apnea was caused or aggravated by his service-connected persistent depressive disorder.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim for service connection for liver disease have been met. 38 C.F.R. § 3.2501.

2. The criteria for readjudicating the claim for service connection for diabetes mellitus, type II, have been met. 38 C.F.R. § 3.2501.

3. The criteria for readjudicating the claim for service connection for hypertension have been met. 38C.F.R. §3.2501.

4. The criteria for readjudicating the claim for service connection for depression have been met. 38C.F.R. §3.2501.

5. The criteria for readjudicating the claim for service connection for sleep apnea have been met. 38C.F.R. §3.2501.

6. The criteria for service connection for persistent depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

7. The criteria for service connection for hypertension as secondary to service-connected persistent depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

8. The criteria for service connection for sleep apnea as secondary to service-connected persistent depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1987 to December 1996, to include service in Southwest Asia Theater of Operations.

In January 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues of entitlement to service connection for liver disease, diabetes mellitus, hypertension, depression, and sleep apnea most recently addressed in November 2019 statement of the case. In April 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the
ONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1987 to December 1996, to include service in Southwest Asia Theater of Operations.

In the April 29, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on November 26, 2024.

Therefore, the Board may only consider the evidence of record at the time of the April 2021 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302. If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal 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.

However, because the Board is remanding the claims of entitlement to service connection for liver disease and diabetes, 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).

NEW AND RELEVANT EVIDENCE

VA regulations, applicable to AMA adjudications, provide that if new and relevant evidence is presented or secured with respect to a claim, the agency of original jurisdiction (AOJ) will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed. 38 C.F.R. §3.2501.

New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38C.F.R. §3.2501(a)(1).

1. Liver Disease

Here, the Veteran is seeking service connection a liver disease. In November 2019, the AOJ denied the claim for service connection for a liver disease essentially because the evidence did not show that the liver disease was the result of service. As a result, the claim was denied. Evidence considered in the November 2019 SOC includes service treatment records, private treatment records, VA liver examination, and a VA Gulf War examination.

The evidence received after the November 2019 statement of the case includes VA treatment records, private treatment records, VA examination, and Board hearing testimony.

As it relates to the Veteran's petition to readjudicate the claim for entitlement to service connection for a liver disease, such evidence is both new and relevant to the Veteran's claim for service connection for a liver disease. Here, the Board hearing testimony shows the Veteran complained of stomach pain during service and he currently experiences stomach pain that is related to his liver disease. Board Hearing Transcript (T.) at 9. Also, the Veteran testified that he was exposed to burn pits during service in Southwest Asia Theater. T. at 4. Accordingly, it is relevant
and a VA Gulf War examination.

The evidence received after the November 2019 statement of the case includes VA treatment records, private treatment records, VA examination, and Board hearing testimony.

Accordingly, the Board finds that the evidence received is new and/or tends to prove or disprove a matter at issue in the case, as it relates whether the Veteran's liver disease is etiologically related to his active service. Consequently, the Board finds that new and relevant evidence has been presented with respect to the Veteran's claim seeking service connection for liver disease. To that extent, the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021) (en banc).

2. Diabetes Mellitus, Type II

Here, the Veteran is seeking service connection diabetes. In November 2019, the AOJ denied the claim for service connection for diabetes essentially because the evidence did not show a diagnosis during service, diagnosis to a compensable degree within one year of separation from service, or that the diabetes is the result of service. Evidence considered in the November 2019 SOC includes service treatment records, VA treatment records, and private treatment records.

The evidence received after the November 2019 SOC includes VA treatment records, private treatment records, VA examination, and Board hearing testimony.

As it relates to the Veteran's petition to readjudicate the claim for entitlement to service connection for diabetes, such evidence is both new and relevant to the Veteran's claim for service connection for diabetes. Here, the Board hearing testimony shows the Veteran had high glucose test results during service and that the Veteran was exposed to burn pits during service in Southwest Asia theater. T. at 4, 9. Accordingly, it is relevant as to whether there is a link between his claimed diabetes and military service. As such, this newly associated evidence tends to prove or disprove a matter at issue in the claim, namely the nature and etiology of his claimed diabetes.

Accordingly, the Board finds that evidence received is new and/or tends to prove or disprove a matter at issue in the case, as it relates whether the Veteran's diabetes is etiologically related to his active service. Consequently, the Board finds that new and relevant evidence has been presented with respect to the Veteran's claim seeking service connection for diabetes. To that extent, the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

3. Hypertension, Depression, and Sleep Apnea

The Veteran is seeking service connection hypertension, depression, and sleep apnea. In November 2019, the AOJ denied the claims for service connection for hypertension, depression, and sleep apnea because the evidence did not show an in-service injury, event, or disease; diagnosis to a compensable degrees within one year of separation from service; or a that the disability is the result of the Veteran's service. The evidence considered in the November 2019 SOC includes service treatment records, VA treatment records, and private treatment records.

The evidence received after the November 2019 rating decision includes VA treatment records, VA examinations, Board hearing testimony, and a February 2025 private medical opinion.

As it relates to the Veteran's petition to readjudicate the claims of entitlement to service connection for hypertension, depression, and sleep apnea, such evidence is both new and relevant to the Veteran's claims. The Veteran testified that he was exposed to burn pits during his deployment in Southwest Asia Theater of Operations. T. at 4. The Veteran also testified that he had symptoms of sleep apnea during service. T. at 7. The February 2025 private medical opinion found the Veteran to have diagnoses of hypertension, persistent depressive disorder, and sleep apnea. The private treatment provider opined that the persistent depressive disorder was the result of service. The private treatment provider also opined that the Veteran's hypertension and sleep apnea are the result of service and explained that sleep apnea and hypertension are caused or aggravated by in-service stressors and posttraumatic stress disorder (PTSD). As such, this newly associated evidence tends to prove or disprove a matter at issue in the claim, namely the nature and etiology of his claimed hypertension, depression, and sleep apnea.

Accordingly, the Board finds that the evidence received is new and/or tends to prove or disprove a matter at issue in the case, as it relates whether the Veteran's hypertension, depression, and sleep apnea are etiologically related to his active service. Consequently, the Board finds that new and relevant evidence has been presented with respect to the Veteran's claim seeking service connection for hypertension, depression, and sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

SERVICE CONNECTION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, including psychosis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

Service connection may be established on a secondary basis for a disability that 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b).

Pertinent to a claim for service connection, such a determination 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); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability").

In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he/she files his/her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.

The veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

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).

1. Persistent Depressive Disorder

The Veteran contends that his depression is the result of service. See Board Hearing Transcript (T.) at 8.

The February 2025 private psychological evaluation shows the Veteran has a current diagnosis of persistent depressive disorder. Accordingly, the Board concludes that the Veteran has a current disability that began during active service and is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In addition, the January 2020 rating decision found the Veteran experienced a qualifying stressor while serving in Saudi Arabia related to his fear of hostile military or terrorist activity. The Board is bound by these favorable findings. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104 (c).

The service treatment records are silent for any complaint, diagnosis
is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The service treatment records are silent for any complaint, diagnosis, or treatment for a mental health condition.

Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim.

The evidence against the claim includes an April 2021 VA mental disorders examination, finding that the Veteran has no diagnosis. The commented that the Veteran reported that he attended an October 2019 psychiatric evaluation after it was suggested to support his VA disability claim. The examiner stated that the private report written by S.A. documented that the Veteran reported depressed mood and worry due to the deaths of several of his children, combat-related stressors, and relationship issues resulting in divorce. S.A. noted in follow-up treatment that the Veteran has a diagnosis of major depressive disorder, single episode, severe; generalized anxiety disorder, severe; possible PTSD related to military stress post military; and rule out bipolar II. Also, the examiner noted that the January 2020 VA PTSD examination resulted in no diagnosis and explained that the Veteran denied any symptoms. The examiner stated that during today's examination, the Veteran reported working long hours and finding it difficult to relax. The examiner noted the Veteran reported distress due to erectile dysfunction. The examiner stated that the Veteran denied other psychologically related symptoms. The examiner concluded that the Veteran's reported symptoms do not meet the criteria for any diagnosis.

When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board finds the April 2021 VA medical opinion inadequate to decide the claim. In that regard, the examiner did not provide adequate supporting rationale for the conclusions reached and did not provide an opinion for direct service connection. In that regard, the Board notes the Veteran complained of, and was treated for, psychiatric symptoms, to include depression and worry, during his active service. In addition, the VA examiner failed to provide an opinion as to major depressive disorder, general anxiety disorder, or persistent depressive disorder. Accordingly, the Board finds the April 2021 VA medical opinion incomplete to decide the claim. This opinion is afforded little, if any, probative weight.

The evidence in favor of the claim includes the February 2025 private psychological evaluation finding that the Veteran does not have a diagnosis of PTSD, but has symptoms consistent with a diagnosis of persistent depressive disorder. The private treatment provider opined, after reviewing the claims file and an interview of the Veteran, that the Veteran's persistent depressive disorder is as likely as not the result of service. The private treatment provider reasoned that during the Veteran's deployment in Southwest Asia Theater, the Veteran suffered the loss of one of his children due to serious health issues and his wife suffered late term miscarriages, that caused distress as he was unable to provide any support to his wife. During that time the Veteran reported becoming depressed. The private treatment provider also noted that the Veteran reported further stress from his service in Southwest Asia Theater. The private treatment provider stated that since leaving service, the Veteran has received little care for his depression.

The Board affords the February 2025 private medical opinion highly probative. The private medical opinion provided a thorough review and assessment of both the Veteran and his lay statements, including medical literature and resources consulted. In addition, the private doctor considered the lay statements and contentions of the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the private doctor considered the Veteran's circumstances of his service, to include the impact of his service in Southwest Asia when rendering the opinions. Accordingly, this opinion is afforded high probative weight.

In sum, the Veteran has a current diagnosis of persistent depressive disorder. The only probative opinion of record is in support of the Veteran's claim for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (
clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the private doctor considered the Veteran's circumstances of his service, to include the impact of his service in Southwest Asia when rendering the opinions. Accordingly, this opinion is afforded high probative weight.

In sum, the Veteran has a current diagnosis of persistent depressive disorder. The only probative opinion of record is in support of the Veteran's claim for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current persistent depressive disorder is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for persistent depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Hypertension and Sleep Apnea

The Veteran contends that his hypertension is the result of service. See January 2021VA Form 20-0995 Supplemental Claim Application. The Veteran also asserts that his sleep apnea began during active service. T. at 7.

The Veteran's service treatment records are silent for any complaints of, treatment for, or diagnosis of hypertension or sleep apnea. However, the record shows that the conditions are secondary to his service-connected persistent depressive disorder. At the outset, the Board notes that as a result of this decision, service connection is in effect for persistent depressive disorder.

Post-service treatment records confirm diagnosis for hypertension and sleep apnea. See September 25, 2003 Private treatment record, October 25, 2013 VA treatment record.

Turning to the question of whether there is an etiological relationship between the Veteran's hypertension and sleep apnea and service and/or service-connected persistent depressive disorder, the Board notes that the record contains the below etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider the opinions below.

The Veteran was afforded a VA examination in October 2013 for hypertension and sleep apnea. The examinations found the Veteran to have diagnoses of hypertension and sleep apnea. The examiner opined that it is less likely than not that the Veteran's hypertension is the result of service. The examiner reasoned that the Veteran was diagnosed with hypertension approximately in 2002 to 2003, six to seven years after active duty. The examiner also opined that it is less likely than not that the Veteran's sleep apnea is the result of service. The examiner reasoned that the Veteran was not diagnosed with sleep apnea in 2005, which is nine years after his active duty. The examiner stated that this is too far removed from his active duty to have had any part in causing or aggravating his sleep apnea.

The Veteran was again afforded a VA examination in March 2021 for the same conditions, and the examiner again found the Veteran to have diagnoses of hypertension and sleep apnea. A VA medical opinion was not provided in relation to these examinations.

When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board finds the October 2013 and March 2021 VA medical opinions inadequate to decide the claims. In that regard, the examiners did not provide adequate supporting rationale for the conclusions reached and did not provide an opinion for secondary service connection. In that regard, the Board notes that the Veteran has contended his conditions were caused by or aggravated by his now service-connected psychiatric disorder. Accordingly, the Board finds the October 2013 and March 2021 VA medical opinions incomplete to decide the claim. These opinions are afforded little, if any, probative weight.

In a February 2025 private medical opinion, the evaluator opined that the Veteran's hypertension and sleep apnea is the result of service-connected posttraumatic stress disorder (PTSD). The evaluator reasoned that based on the medical documentation and considering the
inadequate to decide the claims. In that regard, the examiners did not provide adequate supporting rationale for the conclusions reached and did not provide an opinion for secondary service connection. In that regard, the Board notes that the Veteran has contended his conditions were caused by or aggravated by his now service-connected psychiatric disorder. Accordingly, the Board finds the October 2013 and March 2021 VA medical opinions incomplete to decide the claim. These opinions are afforded little, if any, probative weight.

In a February 2025 private medical opinion, the evaluator opined that the Veteran's hypertension and sleep apnea is the result of service-connected posttraumatic stress disorder (PTSD). The evaluator reasoned that based on the medical documentation and considering the strong association of chronic military PTSD with the onset of hypertension and the fact that the hypertension started at a young age, only a few years after the onset of PTSD, and the fact that the condition has persisted and requires continued medication management after decades, it is as likely as not that the Veteran has a service-connected disability of hypertension. The medical provider cited to medical literature in support of this finding.

The February 2025 private medical opinion also reasoned that based on the medical documentation, and considering the scientific literature, there is a very strong association between military-related PTSD and the onset of sleep apnea, the severity of the sleep apnea, and the persistent sleep apnea over the years requiring continuous positive airway pressure (CPAP) for management. As a result, the evaluator concluded that the Veteran as likely as not has a service-connected disability of sleep apnea. The evaluator cited to medical literature in support of this finding.

The Board acknowledges that the February 2025 private medical opinion was based on the medical documentation available. The medical documentation showed the Veteran to have PTSD. However, a February 2025 private mental health evaluation and opinion found the Veteran to have a diagnosis of persistent depressive disorder, based the medical documentation and the current evaluation.

The Board finds the February 2025 private opinions to be probative. In this regard, the private opinion considered the continuing treatment for the Veteran for many years, reviewed the medical evidence, and cited to medical literature to support an adequate supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, supra. In addition, the private medical opinion also provided clear conclusions and supporting data, as well as reasoned medical explanations that connected the Veteran's hypertension and sleep apnea to his service-connected persistent depressive disorder. Id. Accordingly, these opinions are afforded probative weight.

In sum, the Veteran has a current diagnoses of hypertension and sleep apnea. The only probative opinions of record are in support of the Veteran's claims for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject these supportive opinions and to further develop the claims. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).

Accordingly, the Board finds that the evidence is for the claims and entitlement to service connection for hypertension and sleep apnea as secondary to service-connected persistent depressive disorder is warranted. The appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

REASONS FOR REMAND

1. Service Connection - Liver Disease and Diabetes Mellitus, Type II

The AOJ denied the Veteran's current claims of service connection for liver disease and diabetes on the basis that new and relevant evidence had not been received to readjudicate the claims following a prior denial. The Board's decision above finds that there is sufficient evidence to readjudicate the claims. As the AOJ has not considered the Veteran's claims of service connection for liver disease and diabetes on their merits, and the Veteran has not waived his right to AOJ initial consideration, the Board finds that a remand for the AOJ to adjudicate the Veteran's claims in the first instance is necessary. See Hickson v. Shinseki, 23 Vet. App. 394 (2010).

Importantly, adjudication under the Appeals Modernization Act (AMA) limits the circumstances in which the Board may remand appeals to the AOJ for further development. Nevertheless, even under the AMA, the Board still has the duty to remand to correct any error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

The Board is unaware of any
Board finds that a remand for the AOJ to adjudicate the Veteran's claims in the first instance is necessary. See Hickson v. Shinseki, 23 Vet. App. 394 (2010).

The Board is unaware of any legal authority to support the idea that Hickson does not apply to the AMA because Hickson was based on section 7104, which was not amended by the AMA. Thus, a remand for initial readjudication on the merits is still necessary as the Veteran has a procedural right to have one review of the appeal by the Secretary under 38 U.S.C. § 7104(a), and the AMA amendments do not specifically revoke that right.

The Board finds that additional development is required before the claims of entitlement to service connection for liver disease and diabetes are decided. Specifically, the Veteran testified at the Board hearing that he experiences symptoms of liver disease during service and has continued to have these symptoms since separation from service. T. at 9. Also, the Veteran's representative asserted that the Veteran had a 1989 glucose reading of 105 that is evidence of an in-service onset of diabetes. T. at 9. This evidence was not addressed in any prior VA medical opinions.

Remand is required for development and adjudication of the claims.

The matters are REMANDED for the following action:

Having determined that new and relevant evidence sufficient to readjudicate the previously denied claims for service connection for liver disease and diabetes has been received, the AOJ should readjudicate the claims in the first instance, to include consideration of complaints of in-service stomach pain and in-service glucose reading of 105.

Mariah N. Sim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Thompson, 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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