PERIPHERAL NERVE DISORDERS

DAVID A. BRENNINGMEYER · 2026 · Case ID: A26004939

MIXED

Summary

The Veteran, an Army Veteran who served from June 1970 to November 1971, including service in Korea, appeals the denial of service connection for peripheral neuropathies of the upper and lower extremities, hypertension, gastrointestinal disabilities (colon cancer residuals, GERD, inguinal hernia), glaucoma, and a psychiatric disorder (depression/chronic depressive personality disorder). The Veteran also appeals the denial of service connection for obstructive sleep apnea (OSA), which the Board remanded due to a duty to assist error. For the denied claims, the Board found the evidence persuasively against service connection. Specifically, for peripheral neuropathies, the Board noted the absence of a diagnosis during service or proximate to the claim filing, despite a favorable finding in an earlier decision that was deemed to be clear and unmistakable error. For hypertension, while a current diagnosis was acknowledged, the Board found no in-service event or nexus to service, noting normal findings at separation. Similarly, for gastrointestinal disabilities and glaucoma, the Board found no in-service event or nexus, despite favorable diagnoses in prior decisions. The psychiatric disorder claim was denied as a matter of law because chronic depressive personality disorder is not a compensable condition, and for depression, the Board found no in-service event or nexus, despite favorable findings of diagnosis. The Board acknowledged that VA examinations were not provided for most claims but deemed them unnecessary due to the lack of evidence supporting service connection. The benefit-of-the-doubt doctrine was considered but not applied as the evidence favored denial.

Rationale

No evidence of current diagnosis of peripheral neuropathy; No in-service event, injury, or disease related to neuropathy; STRs silent for complaints, treatment, or diagnoses of neuropathy

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

211008-189846

Full Decision Text

Citation Nr: A26004939
Decision Date: 01/20/26 Archive Date: 01/20/26

DOCKET NO. 211008-189846
DATE: January 20, 2026

ORDER

Service connection for peripheral neuropathy of the upper extremities, to include as due to exposure to herbicide agents, is denied.

Service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to herbicide agents, is denied.

Service connection for hypertension, to include as due to exposure to herbicide agents, is denied.

Service connection for a gastrointestinal disability, to include residuals of colon cancer, gastroesophageal reflux disease (GERD), and/or inguinal hernia, to include as due to exposure to herbicide agents, is denied.

Service connection for a bilateral eye disability is denied.

Service connection for a psychiatric disorder, to include depression and/or chronic depressive personality disorder, is denied.

REMANDED

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

FINDINGS OF FACT

1. The Veteran is not shown to have had peripheral neuropathy of the upper extremities at any time during the pendency or proximate to the filing of his claim.

2. The Veteran is not shown to have had peripheral neuropathy of the lower extremities at any time during the pendency or proximate to the filing of his claim.

3. The Veteran has a current diagnosis of hypertension; however, none of the credible and probative evidence indicates that the condition might be associated with his service.

4. The Veteran has current gastrointestinal disabilities of residuals of colon cancer, GERD, and inguinal hernia; however, none of the credible and probative evidence indicates that any of those conditions might be associated with his service.

5. The Veteran has a current diagnosis of glaucoma; however, none of the credible and probative evidence indicates that the condition might be associated with his service.

6. The Veteran has been diagnosed with chronic depressive personality disorder, which is not considered a disease or injury for Department of Veterans Affairs (VA) compensation purposes.

7. The Veteran has a current diagnosis of depression; however, none of the credible and probative evidence indicates that the condition might be associated with his service.

CONCLUSIONS OF LAW

1. The criteria for an award of service connection for peripheral neuropathy of the upper extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for an award of service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for an award of service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The criteria for an award of service connection for a gastrointestinal disability, to include residuals of colon cancer, GERD, and/or inguinal hernia, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria for an award of service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

6. The criteria for an award of service connection for a psychiatric disorder, to include depression and/or chronic depressive personality disorder, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from June 1970 to November 1971, to include service in Korea. His decorations
, 5107; 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 U.S. Army from June 1970 to November 1971, to include service in Korea. His decorations include the Armed Forces Expeditionary Medal.

This matter arises from a June 2020 rating decision issued by a VA Regional Office. Following a further denial on Higher-Level Review in May 2021, the Veteran timely appealed to the Board of Veterans' Appeals (Board) by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in October 2021, selecting the hearing review option. 38 C.F.R. §§ 20.201, 20.202(b)(2).

In June 2025, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Under the hearing review option, the Board may only consider the evidence of record at the time of issuance of the June 2020 rating decision, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the June 2020 decision and before the hearing was held, or (2) evidence submitted more than 90 days after the hearing was held. 38 C.F.R. § 20.302.

As set out below, the Board is entering a decision denying the Veteran's claims for service connection for upper and lower extremity peripheral neuropathies, hypertension, a gastrointestinal disability, glaucoma, and a psychiatric disorder. 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 its decision on those claims. 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, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As to the claim of entitlement to service connection for OSA, the Board is remanding that claim to the AOJ for correction of a pre-decisional duty to assist error. The AOJ will consider any additional evidence that has been submitted when that claim is readjudicated. 38 C.F.R. § 3.103(c)(2)(ii).

The Veteran's claim for service connection for depression has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of
a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases-to include organic diseases of the nervous system and/or hypertension-to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307(i) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Certain diseases may be presumed to have been incurred in service where a veteran was exposed to herbicide agents while on active service, even when there is no evidence of such a disease during the period of service, to include early onset peripheral neuropathy and/or hypertension. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Under the recently passed Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins (PACT) Act of 2022, presumptive service connection is warranted for Veterans who served in Korea from April 1968 to August 1971 in a unit that operated in or near the Korean demilitarized zone (DMZ). 38 C.F.R. § 3.307(a)(6)(iv).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An approximate balance of the evidence includes, but is not limited to, equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id.

1. Entitlement to service connection for peripheral neuropathy of upper extremities, to include as due to exposure to herbicide agents

2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to herbicide agents

The Veteran seeks to establish service connection for peripheral neuropathy of the upper and lower extremities. At the June 2025 Board hearing, he testified
evidence includes, but is not limited to, equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id.

1. Entitlement to service connection for peripheral neuropathy of upper extremities, to include as due to exposure to herbicide agents

2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to herbicide agents

The Veteran seeks to establish service connection for peripheral neuropathy of the upper and lower extremities. At the June 2025 Board hearing, he testified that he did not have any tingling and/or numbness during service, and that he did not know how he got it. However, inasmuch as early onset peripheral neuropathy is a disease which is presumptively due to in-service exposure to herbicide agents, and inasmuch as possible exposure to herbicide agents was addressed at the June 2025 hearing, the Board finds that the theory that the Veteran has peripheral neuropathy as a result of exposure to herbicide agents has been reasonably raised by the record.

In the June 2020 rating decision, the AOJ made a favorable finding that the Veteran had been diagnosed with a disability per VA treatment records. In the May 2021 Higher-Level Review rating decision, however, the AOJ overturned that favorable finding, noting that outpatient treatment records were absent for a diagnosis of peripheral neuropathy. While favorable findings are generally binding on the Board, they are binding only absent clear and unmistakable error (CUE). 38 C.F.R. § 3.104(c). Here, the Board finds that it is not bound by the June 2020 favorable finding. Not only did the AOJ overturn that favorable finding in its subsequent, May 2021 Higher-Level Review rating decision; the evidence also demonstrates that the AOJ's initial favorable finding was the product of clear and unmistakable error.

Review of the claims file demonstrates that the Veteran did not have a diagnosis of peripheral neuropathy of any of his extremities at any time during the pendency or proximate to the filing of his claim. A December 2010 VA treatment record shows that EMG (electromyography) revealed radiculopathy of his left lower extremity. In an August 2016 VA treatment record, however, he denied any numbness and/or loss of sensation, and on examination his neurological system was indicated to be normal. The Veteran filed his claim for service connection for peripheral neuropathy of the extremities in June 2020, almost four years later, and the evidence available for review does not contain any other references to neuropathy of any kind.

In light of the foregoing, the Board must conclude that the evidence is persuasively against the claims. Simply put, there is nothing in the available evidence to show that the Veteran had a diagnosis of peripheral neuropathy of any extremity, to include early-onset peripheral neuropathy, at any time during the pendency or proximate to the filing of his claim. As noted previously, in the absence of proof of a current disability, there can be no valid claim. See Brammer, supra.

The Board acknowledges that the Veteran has not been afforded a VA examination in connection with these claims. However, in the absence of proof of a current disability or any evidence indicating that there may be a link between the disabilities and service, an examination and/or opinion was not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board has also considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claim, that doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal of these issues must be denied.

3. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents

The Veteran seeks to establish service connection for hypertension. At the June 2025 Board hearing, he stated that he was never told anything about his blood pressure readings in service, but that he had a heart attack around 2004 or 2005, and that he had had hypertension since that time. Inasmuch as hypertension is a disease which is presumptively related to in-service exposure to herbicide agents, and inasmuch as possible exposure to herbicide agents was addressed at the June 2025 hearing, the Board finds that the theory that the Veteran's hypertension is due to in-service exposure to herbicide agents has been reasonably raised by the record.

As an initial matter, the Board notes that in the June 2020 rating decision, the AOJ
connection for hypertension. At the June 2025 Board hearing, he stated that he was never told anything about his blood pressure readings in service, but that he had a heart attack around 2004 or 2005, and that he had had hypertension since that time. Inasmuch as hypertension is a disease which is presumptively related to in-service exposure to herbicide agents, and inasmuch as possible exposure to herbicide agents was addressed at the June 2025 hearing, the Board finds that the theory that the Veteran's hypertension is due to in-service exposure to herbicide agents has been reasonably raised by the record.

As an initial matter, the Board notes that in the June 2020 rating decision, the AOJ made a favorable finding that the Veteran had been diagnosed with hypertension. That favorable finding is binding on the Board, and is not in dispute. The first element of service connection, as to the presence of a current disability, has therefore been established.

The Board finds, however, that the evidence is otherwise persuasively against the claim. The available evidence does not establish an in-service event, injury, or disease related to hypertension. Nor is there any evidence that indicates that there may be a nexus, or link, between the Veteran's hypertension and an in-service event, injury, or disease.

The Veteran's service treatment records (STRs) are silent for complaints of, treatment for, or any diagnoses related to hypertension. There are also no STRs that set out high blood pressure readings indicative of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. At the time of the Veteran's September 1971 separation examination, his cardiovascular system was noted to be normal, and his blood pressure was recorded as 120/84.

With respect to the Veteran's contention that he was exposed to herbicide agents during service, the Board notes that he testified at the June 2025 Board hearing that he served along the DMZ during his service in Korea. He explained that in order to receive combat pay he would have to perform guard duty along the DMZ. He testified that he walked the fence line, that he was in Korea for about a year, and that he went up to the DMZ every month in order to receive combat pay.

At present, the claims file does not support a finding that the Veteran served on or near the DMZ. Military personnel records (MPRs) confirm that he served in Korea for approximately one year. Other MPRs confirm that he was stationed at Camp Casey, Camp Dover, and Camp Stanley. The nearest of these camps to the DMZ is Camp Casey, which is at least 7 to 12 miles from the DMZ. While the Veteran's MPRs also confirm that he received basic monthly pay, as well as additional foreign or sea duty pay, they do not show that he ever received combat pay. There is also nothing in the record to show that he is a combat veteran as VA defines that term. See 38 U.S.C. § 1154(b). Additionally, there is nothing in the MPRs which demonstrates that he ever served on guard duty at any location.

While the MPRs outlined above clearly show that the Veteran served in Korea during the requisite time period, the Board finds that they fail to show that he served on or near the DMZ during his service. Further, because he did not report, and the claims file did not otherwise suggest, that he had service on or near the Korean DMZ prior to the issuance of the June 2020 rating decision, the Board finds that the AOJ did not make any pre-decisional duty to assist errors in that regard. That is to say, absent any assertions or other evidence suggesting that the Veteran had service on or near the Korean DMZ, the AOJ had no duty to assist the Veteran in undertaking further development to determine whether he was exposed to herbicide agents during his service prior to issuing its decision.

Inasmuch as hypertension is a chronic disease, the Board has also considered whether service connection on a presumptive basis, as due to chronicity, is warranted. However, as noted, the Veteran has not contended, and the evidence does not otherwise suggest, that he developed hypertension during service or within an applicable presumptive period. He testified that he has had hypertension only since 2004 or 2005, which is many years after his separation from service.

The Board also acknowledges that the Veteran has not been afforded a VA examination in connection with this claim. However, in the absence of an in-service event, injury, or disease and the absence of any evidence indicating that there may be a link between the disability and service, an examination and/or opinion was not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

ity, is warranted. However, as noted, the Veteran has not contended, and the evidence does not otherwise suggest, that he developed hypertension during service or within an applicable presumptive period. He testified that he has had hypertension only since 2004 or 2005, which is many years after his separation from service.

4. Entitlement to service connection for a gastrointestinal disability, to include residuals of colon cancer, GERD, and/or inguinal hernia, and to include as due to exposure to herbicide agents

The Veteran seeks to establish service connection for gastrointestinal disabilities. While he has not advanced any specific theory as to how his gastrointestinal disabilities are related to his service, the Board notes that his testimony regarding service along the Korean DMZ was solicited during the portion of the June 2025 hearing in which he was testifying about gastrointestinal disabilities. As noted, he testified that in order to receive combat pay he would have to perform guard duty along the DMZ. He testified further that he walked the fence line, that he was in Korea for about a year, and that he went up to the DMZ every month in order to receive combat pay.

As an initial matter, the Board notes that in the June 2020 rating decision, the AOJ made a favorable finding that the Veteran had been diagnosed with colon cancer, GERD, and inguinal hernia. That favorable finding is binding on the Board, and is not in dispute. The first element of service connection, as to the presence of a current disability, has therefore been established.

The Board finds, however, that the evidence is otherwise persuasively against the claim. The available evidence of record does not establish an in-service event, injury, or disease related to any gastrointestinal disabilities. Nor is there any evidence that indicates that there is a nexus, or link, between any of the Veteran's gastrointestinal disabilities and an in-service event, injury, or disease.

The Veteran's STRs are silent as to complaints of, treatment for, or any diagnoses related to gastrointestinal disabilities. At the time of his September 1971 separation examination, his abdomen and viscera were noted to be normal.

With respect to the Veteran's contention that he may have been presumptively exposed to herbicide agents by virtue of his service in Korea, as outlined above, the Board finds that the currently available evidence does not support a finding that his service placed him on or near the Korean DMZ. The Board also again notes that because the Veteran did not report, and the claims file does not otherwise suggest, that he served along the Korean DMZ prior to the issuance of the June 2020 rating decision, the AOJ did not make any pre-decisional duty to assist errors in that regard.

The Board also acknowledges that the Veteran has not been afforded a VA examination in connection with this claim. However, in the absence of an in-service event, injury, or disease and the absence of any evidence indicating that there may be a link between any gastrointestinal disability and service, an examination and/or opinion was not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

5. Entitlement to service connection for glaucoma

The Veteran seeks to establish service connection for an eye disability. He has not advanced any specific contentions as to how his eye disability might be related to service. At the June 2025 hearing, when asked if there was an in-service injury related to the eyes, he testified that he had never had an eye injury. When asked if there was an in-service event that might have caused his current eye disability, he testified that he had no idea, and that he had been diagnosed with glaucoma five years earlier.

As an initial matter, the Board notes that in the June
.F.R. § 3.102. The appeal of this issue must be denied.

5. Entitlement to service connection for glaucoma

As an initial matter, the Board notes that in the June 2020 rating decision, the AOJ made a favorable finding that the Veteran had been diagnosed with glaucoma. That favorable finding is binding on the Board, and is not in dispute. The first element of service connection, as to the presence of a current disability, has therefore been established.

The Board finds, however, that the evidence is otherwise persuasively against the claim. The available evidence of record does not establish an in-service event, injury, or disease related to glaucoma or any other eye disability. Nor is there any evidence that indicates that there is a nexus, or link, between the Veteran's glaucoma and an in-service event, injury, or disease.

The Veteran's STRs are silent for complaints of, treatment for, or any diagnoses related to the eyes. At his September 1971 service separation examination, his eyes, ophthalmoscopic system, pupils, and ocular motility were all indicated to be normal. There is also nothing in the evidence, to include the Veteran's own statements, which indicates that there may be a nexus, or link, between his glaucoma and an in-service event, injury, or disease.

To the extent the Veteran believes that his glaucoma might be attributable to exposure to herbicide agents by virtue of his service in Korea, as outlined above, the Board finds that the currently available evidence does not support a finding that his service placed him on or near the Korean DMZ. The Board also again notes that because the Veteran did not report, and the claims file does not otherwise suggest, that he served along the Korean DMZ prior to the issuance of the June 2020 rating decision, the AOJ did not make any pre-decisional duty to assist errors in that regard.

The Board acknowledges that the Veteran has not been afforded a VA examination in connection with this claim. However, in the absence of an in-service event, injury, or disease and the absence of any evidence indicating that there may be a link between glaucoma and service, an examination and/or opinion was not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

6. Entitlement to service connection for a psychiatric disorder, to include depression and/or chronic depressive personality disorder

The Veteran contends, in essence, that he has an acquired psychiatric disorder that was caused by service. At the June 2025 Board hearing, the Veteran testified that he was harassed a lot during service due to racial discrimination, and that almost every weekend he was arrested and then released the following day with no charges. He testified that he did not remember when his psychiatric symptoms began. The Board understands his primary contention to be that he suffered harassment during service and that he developed depressive symptoms as a result.

As an initial matter, the Board notes that in the June 2020 rating decision, the AOJ made a favorable finding that the Veteran had been diagnosed with a disability in that treatment records showed treatment for depression. In the May 2021 Higher-Level Review rating decision, the AOJ made a favorable finding that the Veteran had been diagnosed with chronic depressive personality disorder. These favorable findings are binding on the Board, and are not in dispute.

With respect to the diagnosis of chronic depressive personality disorder, the Board notes that 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. However, congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation governing VA compensation. 38 C.F.R. §§ 3.303(c), 4.9. Because personality disorders are not recognized as diseases or injuries
been diagnosed with chronic depressive personality disorder. These favorable findings are binding on the Board, and are not in dispute.

With respect to the diagnosis of chronic depressive personality disorder, the Board notes that 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. However, congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation governing VA compensation. 38 C.F.R. §§ 3.303(c), 4.9. Because personality disorders are not recognized as diseases or injuries for VA compensation purposes, service connection for chronic depressive personality disorder must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).

The Board notes, however, that VA treatment records dated during the pendency or proximate to the filing of the claim also note a DSM-5 diagnosis of depression, and as noted, the AOJ made a favorable finding with respect to that diagnosis. The first element of service connection, as to the presence of a current disability, has therefore been established. The further question for the Board's consideration is whether an award of service connection for depression is warranted.

The Veteran's STRs are largely silent for specific complaints of psychiatric problems, and they are fully silent with respect to treatment or diagnoses related to psychiatric impairment. At the time of his September 1971 separation examination, the examiner indicated that review of the psychiatric system was abnormal and referenced a mental status examination. The accompanying mental status examination shows that the Veteran's behavior was normal; that he was fully alert and oriented; that his mood was level and his thinking process clear; that his thought content was normal; and that his memory was good. The examiner noted that there was no impression of significant mental illness, that the Veteran was mentally responsible, and that he had the mental capacity to participate in Board proceedings. Board proceedings occurred the following month to assess whether discharge was warranted due to unfitness. Later, in a November 1971 medical clearance certificate, the Veteran was indicated to be free from mental illness, character, behavior, or intelligence disorders, and was granted medical clearance for discharge.

The Board acknowledges that the Veteran's MPRs show that he was involved in several disciplinary proceedings during his service, to include for being absent without leave, for failure to obey an order, and for being drunk and disorderly. The Board understands the Veteran's belief that those proceedings or charges amounted to harassment. The Board must conclude, however, that the records do not establish an in-service event related to his current diagnosis of depression. As noted, he was specifically evaluated as to psychiatric disorders at the time of his service separation and was found not to have any clinical problems or diagnoses related to any acquired psychiatric disorder, and the evidence does not otherwise suggest that his current symptoms may be related to service.

The Board acknowledges that the Veteran has not been afforded a VA examination in connection with this claim. However, in the absence of an in-service event, injury, or disease and the absence of any evidence indicating that there may be a link between his depression and service, an examination and/or opinion was not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

REASONS FOR REMAND

Entitlement to service connection for OSA is remanded.

The Veteran seeks to establish service connection for OSA. He has not advanced any specific theory as to how his OSA is related to service. At the June 2025 Board hearing, he testified that he did not know how OSA related to service because he did not know that he had it. When asked if anyone noticed in service that he stopped breathing in his sleep, he responded in the negative. When asked if he believed that his OSA could be the result of irregular sleep patterns during service, the Veteran again responded in the negative, stating that he went to sleep at night and did not have problems with sleeping at nighttime.

Review of the claims file shows that there are outstanding non-VA treatment records related to the Veteran's claim for service connection for OSA. An October 2016 VA treatment record notes that the Veteran is followed by a non-VA provider, a Dr. B., for sleep issues. At present, the claims file does not contain a copy of records from Dr. B.
know that he had it. When asked if anyone noticed in service that he stopped breathing in his sleep, he responded in the negative. When asked if he believed that his OSA could be the result of irregular sleep patterns during service, the Veteran again responded in the negative, stating that he went to sleep at night and did not have problems with sleeping at nighttime.

Review of the claims file shows that there are outstanding non-VA treatment records related to the Veteran's claim for service connection for OSA. An October 2016 VA treatment record notes that the Veteran is followed by a non-VA provider, a Dr. B., for sleep issues. At present, the claims file does not contain a copy of records from Dr. B. Inasmuch as a copy of those records, if obtained, could have a bearing on the outcome of the Veteran's claim, the Board finds that the AOJ made a pre-decisional duty to assist error when it failed to assist the Veteran in obtaining them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Under the circumstances, a remand for correction of that pre-decisional duty to assist error is warranted. ?

This matter is REMANDED for the following action:

Ask the Veteran to provide a release for relevant records of treatment from Dr. B., who has reportedly treated the Veteran for sleep issues, as identified in an October 2016 VA treatment record. Inform the Veteran that, in the alternative, he may also provide the records himself. If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record.

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Oldroyd, 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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