Case 26004982

Summary

The Veteran served from October 1983 to October 1986 and again from November 1990 to May 1991. The appellant, the Veteran's surviving spouse, appealed the denial of service connection for obstructive sleep apnea (OSA) and an acquired psychiatric disorder. The Board dismissed the OSA claim because a subsequent rating decision granted service connection for OSA, rendering the appeal moot. For the acquired psychiatric disorder, the Veteran contended it was service-related. The Board reviewed the evidence, including psychiatric evaluations, service treatment records, post-service treatment records, lay statements, and previous medical opinions. A November 2025 VA addendum opinion found clear and unmistakable evidence that the Veteran's psychiatric disorder predated service but was aggravated beyond natural progression by service due to a combat-related assault. Although the examiner used an incorrect "at least as likely as not" standard for aggravation, the Board found this met the less onerous "clearly and unmistakably" standard. Despite later negative VA opinions, the Board found the November 2025 opinion sufficient. The Board determined the evidence was in approximate balance, affording the appellant the benefit of the doubt, and granted service connection for the acquired psychiatric disorder.

Rationale

Subsequent rating decision granted service connection for OSA.; Appeal rendered moot.; No longer a case or controversy for the Board to adjudicate.

Full Decision Text

Citation Nr: 26004982
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 18-21 015
DATE: April 28, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) is dismissed.

Entitlement to service connection for an acquired psychiatric disorder is granted.

FINDINGS OF FACT

1. A March 2025 rating decision awarded service connection for OSA.

2. Resolving reasonable doubt in the appellant's favor, the Board finds that the Veteran's preexisting acquired psychiatric disorder was aggravated by service.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the claim of entitlement to service connection for OSA have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for service connection for an acquired psychiatric disorder have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1983 to October 1986 and from November 1990 to May 1991.  The Veteran died in February 2019, and the appellant is his surviving spouse.

In November 2023, in pertinent part, the Board denied claims of entitlement to service connection for OSA and an acquired psychiatric disorder.  Thereafter, the appellant appealed to the United States Court of Appeals for Veterans Claims (Court).  In an October 2024 Joint Motion for Partial Remand (JMPR), the Secretary of VA and the appellant (the parties) moved the Court to vacate the November 2023 decision as to the denials of service connection for OSA and an acquired psychiatric disorder.  The Court granted the JMPR in an October 2024 order and the matters returned to the Board.

The Board most recently remanded the claims for additional development in October 2025.

1. Entitlement to service connection for OSA is dismissed.

The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

Here, following the development instructed by the Board's October 2025 remand, a March 2026 rating decision awarded the appellant service connection for the Veteran's OSA, effective January 1, 2017.

The AOJ's award of service connection is a full grant of the benefits sought on appeal; therefore, there is no longer a case or controversy for the Board to adjudicate.  Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  The Board no longer has jurisdiction to review the appeal, as it has been rendered moot.  

38 U.S.C. § 7105; 38 C.F.R. § 19.55.  Accordingly, the appeal is dismissed.

2. Entitlement to service connection for an acquired psychiatric disorder is granted.

During his lifetime, the Veteran contended that his acquired psychiatric disorder was related to service.  The appellant continues his claim.

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C. § 1110.  

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability
, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304; Hensley, 5 Vet. App. at 159-60.

According to the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance."  Lynch held that the veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance, i.e., nearly equal and does not require the evidence to be in exact equipoise.  Id.

After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the appellant reasonable doubt and grants service connection for an acquired psychiatric disorder.

Pursuant to the Board's October 2025 remand, a VA addendum opinion was rendered in November 2025.  A VA examiner found, after a comprehensive review of the claims file, including psychiatric evaluations, service treatment records, post-service treatment records, lay statements, and previous medical opinions, that there was clear and unmistakable evidence that the Veteran's psychiatric disorder existed prior to military service.  The examiner referenced specific evidence in treatment records that supported her opinion.  She explained that her conclusion was supported by retrospective psychiatric documentation, corroborating medical opinions, and a consistent trauma history that met the legal standard required to rebut the presumption of soundness.  Further, the examiner opined that the Veteran's preexisting psychiatric disorder was as least as likely than not aggravated beyond natural progression by service when he was attacked and severely beaten.  The Veteran went on to receive mental health treatment since service, including inpatient hospitalization. 

The Board is aware that the November 2025 examiner used the incorrect standard of "as least as likely as not" when concluding that the Veteran's preexisting psychiatric disorder was aggravated by service.  However, the correct standard of "clearly and unmistakably" not aggravated by service is a less onerous standard and clearly met by the examiner's opinion.

The Board further acknowledges that negative VA opinions were subsequently rendered in January and February 2026.  However, the Board finds that the November 2025 opinion is sufficient and remanding yet again for another opinion would not be beneficial to the appellant and would only serve to further delay the resolution of this claim.

Accordingly, the Board finds that the evidence for and against the claim is in approximate balance.  Therefore, the benefit of the doubt must be resolved in favor of the appellant, and entitlement to service connection for an acquired psychiatric disorder is warranted.  38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Silverblatt, L.

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.