SPINAL FUSION

STEVEN D. REISS · 2026 · Case ID: A26004251

DENIED

Summary

The veteran, who served in the United States Air Force from July 1965 to September 1967, appeals the denial of service connection for a back condition (claimed as back surgery), chronic obstructive pulmonary disease (COPD), hypertension, chronic kidney disease, and diabetes mellitus type II. The veteran's representative argued that these conditions were caused by or incurred during military service, and that the chronic kidney disease was secondarily caused by diabetes and hypertension. The Board acknowledged favorable findings from the RO regarding the veteran's diagnoses and the potential for presumptive service connection for diabetes, hypertension, and chronic kidney disease if manifested within one year of service. However, the Board found the service treatment records (STRs) to be negative for all claimed conditions. Post-service records indicated the back condition was due to a 1994 motor vehicle accident and a 2010 work injury, with the veteran consistently attributing his back problems to these post-service events. The chronic conditions were diagnosed many years after service. The Board found no evidence of in-service incurrence or aggravation for any of the claimed conditions, noting that the veteran's representative's arguments did not place the evidence in approximate balance, and that contemporaneous records were more probative than later statements. The Board also found no evidence of toxic exposure risk activity (TERA) or participation in combat, and noted the veteran denied concerns about toxic exposures during a screening. The Board concluded that the evidence persuasively weighed against service connection on any basis, and the benefit-of-the-doubt doctrine was not applicable. Service connection for all claimed conditions was denied.

Rationale

No evidence of in-service incurrence or aggravation; Post-service motor vehicle accident and work injury cited as cause; Contemporaneous records more probative than later statements

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

251204-601801

Full Decision Text

Citation Nr: A26004251
Decision Date: 01/15/26 Archive Date: 01/15/26

DOCKET NO. 251204-601801
DATE: January 15, 2026

ORDER

Service connection for back disability, claimed as back surgery, is denied.

Service connection for chronic obstructive pulmonary disease (COPD) is denied.

Service connection for hypertension is denied.

Service connection for chronic kidney disease is denied.

Service connection for diabetes mellitus type II is denied.

FINDINGS OF FACT

1. The evidence is persuasively against finding that the Veteran was exposed to an herbicide agent, as defined under applicable regulations, during service.

2. The Veteran's currently diagnosed back condition, to include a back surgery, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II did not manifest in service or until many years thereafter, are not related to service to include recognized TERA, and his current condition bears no etiological relationship to any aspect of active duty service.

CONCLUSIONS OF LAW

1. The criteria for service connection for back disability, to include back surgery, have not been met. 38?U.S.C. §§?1110, 1112, 1113, 1116, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for COPD have not been met. 38?U.S.C. §§?1110, 1112, 1113, 1116, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for service connection for hypertension have not been met. 38?U.S.C. §§?1110, 1112, 1113, 1116, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The criteria for service connection for chronic kidney disease have not been met. 38?U.S.C. §§?1110, 1112, 1113, 1116, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria for service connection for diabetes mellitus type II have not been met. 38?U.S.C. §§?1110, 1112, 1113, 1116, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from July 1965 to September 1967.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2024 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The December 2024 rating decision constitutes an initial decision thus the modernized review system applies, also known as the Appeals Modernization Act (AMA).

By way of procedural history, in December 2022, the Veteran filed a new claim for service connection for back surgery, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II, and in the April 2023 rating decision the RO denied service connection for the Veteran's claims.

In May 2023, the Veteran filed a supplemental claim for back surgery, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II, and in the August 2023 rating decision, the RO confirmed and continued the denials for service connection for the Veteran's claims.

In March 2024, the Veteran filed a supplemental claim for back surgery, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II, and in the July 2024 rating decision, the RO confirmed and continued the denials for service connection for the Veteran's claims.

In August 2024, the Veteran filed a request for Higher Level Review (HLR) of the August 2023 rating decision and in the December 2024 rating decision, the RO confirmed and continued the previous denials for service connection for the Veteran's claims.

In the December 2025 VA Form 10182, the Veteran appealed the December 2024 rating decision and elected the Direct Review do
the Veteran's claims.

In the December 2025 VA Form 10182, the Veteran appealed the December 2024 rating decision and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of notice of the August 2023 agency of original jurisdiction (AOJ) decision on appeal. See 38 U.S.C. § 20.301; see also Terry v. McDonough, 37 Vet. App. 1 (2023) (holding that subsection 5104C(a) plainly provides that a claimant may file more than one administrative review request within 1 year of an initial AOJ decision on a claim, provided that such an administrative review request is not pending concurrently with another administrative review request).

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in this decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file 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 related claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included in this decision.

Service Connection

To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also Davidson v. Shinseki,?581 F.3d 1313, 1316?(Fed. Cir. 2009); Shedden v. Principi,?381 F.3d 1163, 1166-67?(Fed. Cir. 2004); Hickson v. West,?12?Vet. App.?247, 253?(1999).

Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service.? 38 U.S.C. § 1110;?38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise.? 38 U.S.C. §§?1110, 1131;?38 C.F.R. § 3.303.

Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§?1101, 1112, 1113, 1137; Walker v. Shinseki,?708 F.3d 1331, 1338?(Fed. Cir. 2012); Fountain v. McDonald,?27?Vet. App.?258?(2015);?38?C.F.R. §§?3.303?(b), 3.307, 3.309(a).

On August 10, 2022, the President of the United States signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).? 38?U.S.C. §?1168?requires a medical nexus opinion and examination for claimed disabilities with a possible nexus to toxic exposure risk activities (TERA).

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24?Vet. App.?428 (2011); see also Jandreau v. Nicholson, 492
10, 2022, the President of the United States signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).? 38?U.S.C. §?1168?requires a medical nexus opinion and examination for claimed disabilities with a possible nexus to toxic exposure risk activities (TERA).

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24?Vet. App.?428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15?Vet. App.?362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13?Vet. App.?482, 488-89 (2000); Wilson v. Derwinski, 2?Vet. App.?614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21?Vet. App.?23, 38 (2007); Caluza v. Brown, 7?Vet. App.?498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. §?1154(a); 38 C.F.R. § 3.303(a).

In determining whether service connection is warranted for a disability, 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 weight of the evidence is against the claim, in which case the claim is denied. 38?U.S.C. §?5107.

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

Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under?38 C.F.R. §?3.310. Allen v. Brown,?7?Vet. App.?439?(1995); but see Spicer?v. McDonough,?61 F.4th 1360 (Fed. Cir. 2023) (invalidating?3.310(b) for the use of the phrase "proximately due to" in the context of aggravation). Specifically, in Spicer, the Court held that?38 U.S.C. § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability.

The Board notes that this broad language
proximately due to, or the result of a service-connected disease or injury under?38 C.F.R. §?3.310. Allen v. Brown,?7?Vet. App.?439?(1995); but see Spicer?v. McDonough,?61 F.4th 1360 (Fed. Cir. 2023) (invalidating?3.310(b) for the use of the phrase "proximately due to" in the context of aggravation). Specifically, in Spicer, the Court held that?38 U.S.C. § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability.

The Board notes that this broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality-whether through an inability to treat or a more direct, etiological cause. The Federal Circuit noted that nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality. Thus, the Court in?Spicer?found the phrase "proximately due to" under?3.310(b) inconsistent with § 1110 and, therefore "unlawful," consequently, for "aggravation of non-service-connected disabilities" it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. Id.

The Board acknowledges that permanent worsening is not required for secondary service connection, consistent with Ward v. Wilkie, 31?Vet. App.?233 (2019).

For the following reasons, the evidence is persuasively against finding that the Veteran's back condition, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II are related to service on any basis.

1. Service connection for a back condition, claimed as back surgery, is denied.

2. Service connection for chronic obstructive pulmonary disease (COPD) is denied.

3. Service connection for hypertension is denied.

4. Service connection for chronic kidney disease is denied.

5. Service connection for diabetes mellitus type II is denied.

The Veteran seeks service connection for his back surgery, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II. The Veteran's attorney maintains that the Veteran's conditions were caused by or incurred during his military service. See December 2025 VA Form 10182. Further, the Veteran's representative contends that the Veteran's chronic kidney disease was secondarily caused by his diabetes mellitus type II and hypertension, and emphasizes that the Veteran's diabetes mellitus type II, hypertension, and chronic kidney disease may be presumptively linked to his military service. Id.

The Board is sympathetic to the Veteran and has considered the record for all theories of entitlement to service connection for a back condition, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II. For the reasons set forth below, however, the Board finds that the evidence is persuasively against finding that the Veteran's back condition, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II are related to service on any basis.

In the December 2024 rating decision, the RO made favorable findings that the Veteran has been diagnosed with degenerative disc disease status L4-L5 and L5-S1 laminectomies, COPD, diabetes mellitus type II, hypertension, and chronic kidney disease. See also May 2012, August 2023, and February 2024 VA treatment records. The RO made other favorable findings including: (1) that the Veteran has sufficient service to meet the minimum requirements for presumptive service connection as the Veteran; (2) the Veteran's diabetes mellitus, hypertension, and chronic kidney disease are chronic diseases which may be presumptively linked to military service if manifested to a compensable degree within one year of release from active duty; (3) the Veteran's diabetes mellitus and chronic kidney disease became manifest to a degree of 10 percent or more following service as shown in the August 2023 VA treatment records; and (4) the Veteran's chronic kidney disease is secondary to the Veteran's diabetes mellitus type II and hypertension as shown by the January 2013 to August 2023 VA treatment records. These are favorable findings by which the Board is bound.? See 38 U.S.C. §?5104a; 38 C.F.R. §?3.104(c).?

Here, the Veteran's service treatment records (STRs) are negative for any complaints or findings of a back
degree within one year of release from active duty; (3) the Veteran's diabetes mellitus and chronic kidney disease became manifest to a degree of 10 percent or more following service as shown in the August 2023 VA treatment records; and (4) the Veteran's chronic kidney disease is secondary to the Veteran's diabetes mellitus type II and hypertension as shown by the January 2013 to August 2023 VA treatment records. These are favorable findings by which the Board is bound.? See 38 U.S.C. §?5104a; 38 C.F.R. §?3.104(c).?

Here, the Veteran's service treatment records (STRs) are negative for any complaints or findings of a back condition, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II.

Post service, the Veteran's VA treatment records show that the Veteran suffered a back injury in a motor vehicle accident in 1994, and during an injury at work in 2010. In addition, the Veteran continuously reported that his back problems were due to his motor vehicle accident and injury at work, which occurred many years after service.

As to the Veteran's COPD, hypertension, chronic kidney disease, and diabetes mellitus type II, the Veteran's conditions were not diagnosed until many years following service.

The criteria for direct service connection for back disability, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II have not been met. In this regard, the record does not establish that any of these conditions occurred in service. There is no mention of these conditions or symptoms in his STRs.

The Veteran's attorney's recent arguments in support of the present claim do not place the evidence in approximate balance as to whether these conditions had an onset in service. The contemporaneous treatment records are much more reliable and probative than statements he has made in support of this claim more than thirty years after his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board also notes that the Veteran's medical records show no complaints or treatment for his back condition until he suffered a back injury in a motor vehicle accident in 1994.

In light of the foregoing, the Board finds that the persuasive evidence weighs against an in-service disease or injury, the criteria for service connection for a back condition, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II on a direct basis are not satisfied. See Holton, 557 F.3d at 1366.

In addition, because the Veteran's hypertension, diabetes mellitus type II, and chronic kidney disease or a possible symptom of such was not noted in service or within a year of separation, presumptive service connection for the Veteran's hypertension, diabetes mellitus type II, and chronic kidney disease as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).

The Veteran further does not contend, and the record does not suggest, that he had service in Vietnam.

Critically, the evidence does not show that the Veteran participated in any toxic exposure risk activity (TERA) in service. See March 2023 VA TERA memorandum.

Moreover, the Veteran's VA treatment records reflect that the Veteran was offered a toxic exposure screening, and the Veteran denied any concerns about toxic exposures while serving in the military. See May 2023 VA treatment records.

In addition, the Board notes that VA treatment records indicate that the Veteran's COPD is due to his history of smoking tobacco. Whereas the Veteran's chronic kidney disease is due to his diagnosed hypertension and diabetes mellitus type II.

VA did not afford the Veteran medical examinations or obtain nexus opinions on these issues. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

The Board finds no evidence beyond the Veteran's claim suggesting that his conditions are causally related to his military service. See December 2025 VA Form 10182. This
2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

The Board finds no evidence beyond the Veteran's claim suggesting that his conditions are causally related to his military service. See December 2025 VA Form 10182. This is insufficient to warrant the need to provide a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010).

Further, in a claim for service connection the Veteran must show evidence of an in-service incurrence or aggravation of a disease or injury. Here, the Veteran has not provided any information specific to his claim beyond the Veteran's representative urging that the conditions are related to service. By contrast, the Veteran's multiple claims of service connection fail to address any contentions or statements as to how his claimed disabilities are related to service. See December 2022 VA Form 21-526EZ; May 2023 and March 2024 VA Form 20-0995; August 2024 VA Form 20-0996.

In light of the foregoing, the Board finds that under the modernized system a remand to obtain an opinion regarding the issue of causation is not appropriate, as the second element of the McLendon standard-evidence establishing an in-service event, injury, or disease, or evidence establishing a disease listed in a regulatory provision where the claimant has the required service or triggering event to qualify for that presumption - has not been met. McLendon, 20 Vet. App. at 82. Indeed, the probative value of any opinion VA sought would be undermined at the outset, as it would be based solely on a contention of herbicide exposure that has not been substantiated.

Accordingly, the Board finds that the evidence is persuasively against the claims. 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 a back condition, COPD, hypertension, chronic kidney disease, and diabetes mellitus type II is not warranted on any basis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Nettles, 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.

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