DEGENERATIVE ARTHRITIS

B. D. WATSON · 2026 · Case ID: A26021490

MIXED

Summary

The veteran, who served honorably in the Army from September 1974 to October 1996, appeals the denial of service connection for a neck condition, obstructive sleep apnea (OSA), and an acquired psychiatric disorder. The Board granted service connection for the neck condition, finding that the veteran's occupational specialty as an aircraft armament repairman, his testimony of helicopter crashes and vehicle accidents, and a private physician's nexus opinion sufficiently established a link to service. The Board also granted service connection for OSA secondary to hypertension, noting that the veteran and his wife reported sleep apnea symptoms in service, and a private physician opined it was more likely than not related to service, despite a VA examiner finding no established link. The Board applied the benefit of the doubt doctrine to both granted claims due to the approximate balance of evidence. The claim for an acquired psychiatric disorder (depression, anxiety, night tremors) was remanded because the veteran did not receive a VA mental disorder examination, and new and relevant evidence was submitted after the initial denial, including a medical information sheet linking depression to OSA and a treatment record noting depression and PTSD.

Rationale

In-service complaint of neck pain noted in STRs; Veteran testimony of helicopter crashes and vehicle accidents; Private physician nexus opinion linking condition to service; Benefit of the doubt applied due to approximate balance of evidence

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210211-140296

Full Decision Text

Citation Nr: A26021490
Decision Date: 03/10/26 Archive Date: 03/10/26

DOCKET NO. 210211-140296
DATE: March 10, 2026

ORDER

Entitlement to service connection for a neck condition is granted.

Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to hypertension, is granted.

New and relevant evidence (NRE) to readjudicate the claim of service connection for depression, anxiety and night tremors was received.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety, and night tremors is remanded.

FINDINGS OF FACT

1. The persuasive weight of the evidence weighs in favor of a finding that the Veteran's neck condition resulted from in-service injuries.

2. The persuasive weight of the evidence weighs in favor of a finding that the Veteran's OSA was incurred in service and secondary to his service-connected hypertension.

3. Evidence not previously considered and evidence not previously associated with the record was new and relevant to prove the Veteran's claim for an acquired psychiatric disorder.

CONCLUSIONS OF LAW

1.The criteria for service connection for a neck condition have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303

2. The criteria for service connection for OSA, secondary to hypertension have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for readjudicating claims for service connection for an acquired psychiatric disorder have been met. 38?U.S.C. §?5108;?38?C.F.R. §§ 3.156;?3.2501.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran retired from active duty after serving honorably from September 1974 until October 1996.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2020 decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ) denying service connection for a neck condition, OSA, and an acquired psychiatric disorder. In February 2021, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) appealing the rating decision and electing the hearing docket. A Board hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the claims file.

The Board may only consider the evidence of record at the time of the August 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected disease. 38 C.F.R. §§ 3.310 (a)-(b); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a); Allen v, Brown, 7 Vet. App. 439 (1995). When service connection is established for a secondary condition, the secondary condition shall be considered
2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected disease. 38 C.F.R. §§ 3.310 (a)-(b); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a); Allen v, Brown, 7 Vet. App. 439 (1995). When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. Id. A medical nexus opinion must state whether the claimed condition was caused by or aggravated by the service-connected condition. El-Amin v. Shinseki, 26 Vet. App. 136 (2013); 38 U.S.C. § 1110.

Secondary aggravation exists when the non-service-connected disability was not caused by a service-connected disability but would be less severe were it not for a service-connected disability. Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023).

VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. Bailey v. Wilkie, 33 Vet. App. 188 (2021).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377.

Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay testimony is not competent to determine the extent or etiology of matters which require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

The claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a). The VA shall consider all information, including lay and medical evidence of record. VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal 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 Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021
38 C.F.R. § 4.3. When there is an approximate or nearly equal 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 Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

1. Entitlement to service connection for a neck condition is granted.

The August 2020 rating decision conceded the first element of service connection, a current disability of cervical degenerative arthritis. The decision also conceded the second element of service connection, a qualifying event, injury, or disease which had its onset in service as the Veteran's service treatment records (STR) reflected a complaint of neck pain. The Board is bound by these favorable findings. 38 C.F.R. § 3.104. Thus, the Board finds the first and second elements of service connection are satisfied.

The third element of service connection is a nexus between the first two elements. The Board notes that the Veteran's military personnel records reflected that he had an occupational specialty of aircraft armament repairs. His medical records also indicated he was seen by flight surgeons and for at least some of his time in the army was on flight status.

During the hearing the Veteran stated he was in three helicopter crashes and two moving vehicle accidents. He stated that he sought neck care almost immediately after service. Hearing Transcript, pp. 9, 10. The Veteran advised the August 2020 VA examiner that his neck pain began in 1978 and then again in 1982. He further stated that he continued to have neck pain after service and had a cervical discectomy and fusion surgery in 2019.

The Veteran submitted a nexus opinion dated December 2018 from a private spine and pain physician who had been treating the Veteran intermittently for the previous year. The physician opined that given the fact that the Veteran was a helicopter crew member and spent a significant amount of time doing high impact activities such as whole-body vibrations for long periods, with multiple crashes and hard landings, and high impact injuries during fuel sling operations, he was predisposed to all of his cervical spine injuries as a result of his military service. Additionally, the physician noted that the Veteran also had cervical radiculopathy.

The Veteran submitted an October 2018 statement from a soldier he had served with from 1978 to 1982. The soldier described an incident where he and the Veteran were pushed to the ground outside of the helicopter and had to dig the fuel tankers from the mud and snow. This description was not of a helicopter crash and did not mention whether the Veteran was injured during this event.

The earliest record of a neck condition after the Veteran separated from service was noted in a March 2012 treatment record which noted chronic neck pain with left shoulder pain and left arm neuralgia. An MRI was scheduled and cervical degeneration and intervertebral disc degeneration were noted in September 2013. Cervical degenerative disc disease and radiculopathy were also noted in other September 2013 treatment records. In September 2014, the Veteran did physical therapy for his neck. A June 2014 physical therapy record noted that the Veteran advised the provider that his chronic neck pain had been on-going for three to four years.

The Veteran's November 1983 STR noted the Veteran had been in a moving vehicle accident two days prior and hit his head but there was no loss of consciousness. He also had multiple pains in his neck and head. There were no other STRs indicating helicopter crashes or other accidents. Nor were there any line of duty investigations reflecting any helicopter incidents but the Board notes these may be sensitive in nature and not provided to those involved in the crash or incident.

Based on the Veteran's July 2024 Board hearing testimony and his private physician's December 2018 nexus opinion, the Board gives the Veteran every reasonable benefit of doubt and finds that the nexus element has been satisfied.

As the three elements of service connection have been satisfied, the persuasive weight of the evidence weighs in favor of finding that the Veteran's neck condition was incurred as a result of his active-duty service.

In reaching such a determination, the Board considered the applicability of the benefit of the doubt doctrine. That doctrine is applicable in the instant appeal, and his claim for service connection for a neck condition must be granted. 38 U.S.C. § 5107; 38 C.F
in the crash or incident.

2. Entitlement to service connection for OSA, to include as secondary to hypertension, is granted.

The August 2020 rating decision conceded the current disability of OSA and the second element of service connection, an in-service injury. The Board is bound by these favorable findings. 38 C.F.R. § 3.104. Thus, the Board finds the first and second elements of service connection are satisfied. In this case, the Veteran asserted that his OSA was secondary to his service-connected hypertension which was diagnosed while he was in the service.

The third element of service connection is a nexus between the first two elements. During the July 2024 Board hearing, the Veteran testified that while on active duty he woke up without feeling rested, fell asleep while on duty, often woke up with headache and that his wife could attest to not only snoring, but not being able to breathe during the night. Hearing Transcript, pp. 6. His wife testified at the hearing and corroborated the Veteran's testimony. Hearing Transcript, pp. 15.

The May 2019 VA OSA nexus examiner, a physician, stated that a cause-and-effect relationship was not established between sleep apnea and hypertension. The VA physician noted that the Veteran was diagnosed with sleep apnea nearly 22 years after active-duty service and advancing age is a risk factor for the development of sleep apnea.

In December 2018, an army physician noted that the Veteran had been under his care since early 2018. The physician noted that he reviewed the Veteran's service treatment records and noted the Veteran had been diagnosed in the 1990s with hypertension which would be considered out of the ordinary for the average healthy individual. He further noted that the Veteran did not have other known risk factors for OSA, including no family history of hypertension. The army physician opined that in his experience and in the medical literature, it is a well-known fact that undiagnosed sleep apnea can cause hypertension and further that hypertension can lead to sleep apnea. The physician concluded that it is more likely than not (greater than 50 percent), that the Veteran's OSA condition is related to his military service.

In October 2018, the Veteran's physician provided him an information sheet, entitled "Virginia Heart, Obstructive Sleep Apnea," which stated that the consequence of untreated sleep apnea included high blood pressure, diabetes, morning headaches, heart disease, depression, premature aging and fatigue.

The Veteran's June 2018 sleep study report, authored by yet another physician, noted that the Veteran's indications of OSA included disruptive and loud snoring, hypertension, morning headaches and snoring.

High blood pressure and associated headaches were noted in the Veteran's STRs. See, December 1980 noting a blood pressure of 130/102 and 140/100 a day later; October 1994 STR noting hypertension with occasional headaches; and April 1996 report of medical history for his retirement examination which noted hypertension.

After a review of the evidence, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's OSA was directly related to service. There were two physician opinions noting that hypertension can lead to OSA and undiagnosed OSA can lead to hypertension. Additionally, both the Veteran and the Veteran's wife indicated the Veteran had sleep apnea-related symptoms in service and after separation from service. See, Hearing Transcript, pp. 6, 15. Accordingly, the Board finds that the nexus element is satisfied.

As the three elements of service connection have been satisfied, the persuasive weight of the evidence weighs in favor of finding that the evidence is sufficient to establish that the Veteran's OSA had its onset in service and is secondary to hypertension. In reaching such a determination, the Board has considered the applicability of the benefit of the doubt doctrine. As such, that doctrine is applicable in the instant appeal, and his claim for service connection for OSA
osed OSA can lead to hypertension. Additionally, both the Veteran and the Veteran's wife indicated the Veteran had sleep apnea-related symptoms in service and after separation from service. See, Hearing Transcript, pp. 6, 15. Accordingly, the Board finds that the nexus element is satisfied.

As the three elements of service connection have been satisfied, the persuasive weight of the evidence weighs in favor of finding that the evidence is sufficient to establish that the Veteran's OSA had its onset in service and is secondary to hypertension. In reaching such a determination, the Board has considered the applicability of the benefit of the doubt doctrine. As such, that doctrine is applicable in the instant appeal, and his claim for service connection for OSA must be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

3. NRE to readjudicate the claim of service connection for an acquired psychiatric disorder to include depression, anxiety and tremors was received.

VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). "New" evidence means existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.2501 (a)(1). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue, including evidence that raises a theory of entitlement that was not previously addressed. Id.

The August 2020 rating decision denied the Veteran's claim for depression, anxiety and night tremors because the Veteran did not provide new and relevant evidence. The Board notes that the Veteran filed a claim in January 2019 for depression and anxiety. This claim was denied in October 2019 without the benefit of a VA examination for mental disorders. The Board also notes that the decision did not reflect consideration of a record the Veteran submitted in January 2019, which was dated October 2018. The October 2018 document was a medical information sheet noting that depression was a consequence of untreated OSA.

The Veteran appealed the October 2019 decision and filed a supplemental claim in February 2020. A December 2019 treatment record noting the Veteran was being treated for depression and a scheduled follow up appointment for PTSD was associated with the record in June 2020. This was information not previously considered and was relevant to prove the Veteran's claim for depression. Accordingly, NRE was received.

REASONS FOR REMAND

4. Entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety, and night tremors is remanded.

As noted above, the Veteran has not had a VA mental disorder examination. The Board finds that such an examination is necessary to render a decision under the circumstances of this case.?See McLendon v. Nicholson, 20?Vet. App.?79 (2006); see also 38?U.S.C. §?5103A(d)(2); 38?C.F.R. §?3.159(c)(4)(i).?

Accordingly, a remand is necessary to correct the duty to assist error on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the rating decision on appeal. See 38 C.F.R. § 20.802. The Veteran did not have a VA mental disorder examination to address whether it was at least as likely as not, that the Veteran's acquired psychiatric disorder was a result of his service or secondary to his service-connected disabilities.

The matters are REMANDED for the following action:

The AOJ is requested to schedule a mental disorder examination to address whether it was at least as likely as not, that the Veteran's acquired psychiatric disorder(s) was a result of his service or secondary to his service-connected disabilities.

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board W. Polk

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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