Case A26032225

W. DAKNIS · 2026 · Case ID: A26032225

MIXED

Summary

The veteran, who served in the U.S. Army from September 1987 to November 1992, appeals a December 16, 2019, rating decision. The veteran withdrew her appeal regarding service connection for asthma and bilateral hearing loss at a July 2024 hearing, leading to the dismissal of these issues. The Board granted service connection for an acquired psychiatric disorder, including depression and anxiety, as secondary to the veteran's service-connected lumbar spine disability. The veteran's private medical evaluation in October 2024 diagnosed adjustment disorder with mixed anxiety and depressed mood, with the examiner opining the psychiatric condition was at least as likely as not secondary to the service-connected back disability due to pain and limitations impacting mood and quality of life. The Board found this opinion probative and resolved doubt in the veteran's favor, granting service connection. The appeal for obstructive sleep apnea (OSA) was denied. The veteran claimed OSA was related to service through snoring or indirectly through obesity caused by service-connected back issues. The Board found the private medical opinion regarding OSA lacked sufficient specific rationale and gave it little weight, noting the absence of a confirmed OSA diagnosis at the time of the initial decision and negative service treatment records. The Board also found no pre-decisional duty-to-assist error for the OSA claim. The case was remanded for further development on the lumbar spine disability rating, specifically to obtain opinions on whether the condition results in ankylosis or its functional equivalent, and whether it causes bilateral radiculopathy. The hysterectomy claim was also remanded for a VA examination to determine its service connection, as service treatment records showed relevant complaints but no opinion was obtained.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200304-73287

Full Decision Text

Citation Nr: A26032225
Decision Date: 04/08/26 Archive Date: 04/08/26

DOCKET NO. 200304-73287
DATE: April 8, 2026

ORDER

The appeal pertaining to the issue of entitlement to service connection for asthma is dismissed.

The appeal pertaining to the issue of entitlement to service connection for bilateral hearing loss is dismissed.

Service connection for an acquired psychiatric disorder, to include depression and anxiety, as secondary to service-connected lumbar spine disability, is granted.

Entitlement to service connection for obstructive sleep apnea is denied.

REMANDED

Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded.

Entitlement to service connection for a hysterectomy is remanded.

FINDINGS OF FACT

1. At the July 2024 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal as to the issues pertaining to entitlement to service connection for asthma and bilateral hearing loss.

2. The Veteran's acquired psychiatric disability is due to her service-connected lumbar spine disability.

3. The evidence is insufficient to show that the Veteran's OSA is related to her military service or is caused or aggravated by her service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal pertaining to entitlement to service connection for asthma have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of an appeal pertaining to entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

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

4. The criteria for service connection for an obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1987 to November 1992. This matter comes to the Board on appeal from a rating decision issued on December 16, 2019, by a Department of Veterans Affairs (VA) Regional Office, herein referred to as the Agency of Original Jurisdiction (AOJ) under the Appeals Modernization Act (AMA).

In March 2020, the Veteran filed a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested a Board hearing, which was held on July 23, 2024, before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Based on the Veteran's election, the Board may only consider the evidence of record at the time of the December 2019 rating decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

The Board notes that pursuant to Clemons v. Shinseki, the Board has consolidated and expanded the issues of entitlement to service connection for depression and anxiety on appeal to encompass all diagnosed psychiatric disorders and recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.)

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to service connection for asthma.

the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.)

1. Entitlement to service connection for asthma.

2. Entitlement to service connection for bilateral hearing loss.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id.

In the present case, at the July 2024 Board hearing, prior to the promulgation of a decision, the Veteran withdrew her appeal as to the issues of the entitlement to service connection for asthma and bilateral hearing loss. The Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues on appeal and they are dismissed.

Service Connection Claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Secondary service connection may be granted for a disability that is due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

3. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety.

The Veteran contends that she has an acquired psychiatric disorder, to include anxiety and depression, which is related to her military service. Prior to the December 2019 rating decision on appeal, the Veteran did not advance any theories as to the etiology of her acquired psychiatric disorder. However, at the July 2024 Board hearing, she indicated that her depression is related to her service-connected low back disability. See July 2024 Hearing Transcript.

In support of her claim, the Veteran submitted a private evaluation with an etiological opinion in October 2024 (dated May 1, 2024). The report notes a diagnosis of adjustment disorder with mixed anxiety and depressed mood. During the examination, the Veteran reported that she has chronic back pain and the limitations associated with her back disability negatively impact her quality of life. Specifically, her sleep is interrupted by pain; she is only able to walk a little bit before her legs go numb; and she struggles with motivation and would rather lay around watch TV, sleep, and hide from the world.

Based on a review of the evidence and an interview with the Veteran, the examiner opined that the Veteran's psychiatric disorder is at least as likely as not a result of and secondary to her service-connected back condition. As rationale, the examiner
2024 (dated May 1, 2024). The report notes a diagnosis of adjustment disorder with mixed anxiety and depressed mood. During the examination, the Veteran reported that she has chronic back pain and the limitations associated with her back disability negatively impact her quality of life. Specifically, her sleep is interrupted by pain; she is only able to walk a little bit before her legs go numb; and she struggles with motivation and would rather lay around watch TV, sleep, and hide from the world.

Based on a review of the evidence and an interview with the Veteran, the examiner opined that the Veteran's psychiatric disorder is at least as likely as not a result of and secondary to her service-connected back condition. As rationale, the examiner noted that the Veteran's back condition causes pain and limitations that negatively impact her mood and quality of life.

Consequently, as the May 2024 private medical clinician is a competent medical professional who considered all relevant facts and offered rationale for the opinion offered, and there is no adequate medical opinion to the contrary, the Board resolves all doubt in favor of the Veteran and finds that her acquired psychiatric disorder is due to her service-connected lumbar spine disability. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

4. Entitlement to service connection for obstructive sleep apnea.

The Veteran contends that her obstructive sleep apnea is related to her military service. Specifically, at the July 2024 Board hearing, she testified that other servicemembers commented on her snoring during service. In the alternative, she alleged that her service-connected lumbar spine disability caused her obesity, which resulted in her obstructive sleep apnea. See June 2024 Hearing Transcript.

The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1-2017 (Jan. 6, 2017). A grant is warranted (1) if the service-connected disability caused the Veteran to become obese; (2) if obesity was a substantial factor in causing a subsequent disability; and (3) if the subsequent disability would not have occurred but for obesity. See also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis).

Turning to the evidence of record, the Veteran submitted an October 2024 private opinion. The clinician noted a review of the Veteran's record and indicated that it can be concluded that the Veteran's obstructive sleep apnea was at least as likely as not due to weight gain caused by her service-connected back issues. As rationale, the examiner cited to the December 2019 VA Back examination report which noted that she experiences loss of range of motion and is unable to do heavy lifting more than 15 pounds, repetitive lifting, stand or walk for more than 20 minutes at a time, or sit for more than 30 minutes. Thus, due to the above-mentioned functional limitations, the Veteran was unable to exercise and gained excessive body weight. Thereafter, the clinician cited to medical literature which notes that obesity predisposes and potentiates obstructive sleep apnea.

Here, the Board finds that the October 2024 private examiner made general statements citing to medical studies that considered a hypothetical cause and effect without directly addressing the Veteran's specific case. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25. The Board gives the October 2024 private medical opinion little probative weight and cannot grant service connection for obstructive sleep apnea based on it.

The Board acknowledges that the Veteran was not afforded a VA examination for her obstructive sleep apnea. However, at the time of the December 2019 rating decision, there was no evidence of a current diagnosis of obstructive sleep apnea confirmed by a sleep study. Moreover, the Veteran did not advance a theory as to the etiology of her obstructive sleep apnea prior to the decision on appeal, and service treatment records (STRs) are negative for any complaints, treatment, or diagnosis of obstructive sleep apnea. Therefore, the Board finds that there was not a pre-decisional duty-to-assist error at the time of the December 2019 rating decision. Therefore, a remand for an examination and/or opinion is
The Board acknowledges that the Veteran was not afforded a VA examination for her obstructive sleep apnea. However, at the time of the December 2019 rating decision, there was no evidence of a current diagnosis of obstructive sleep apnea confirmed by a sleep study. Moreover, the Veteran did not advance a theory as to the etiology of her obstructive sleep apnea prior to the decision on appeal, and service treatment records (STRs) are negative for any complaints, treatment, or diagnosis of obstructive sleep apnea. Therefore, the Board finds that there was not a pre-decisional duty-to-assist error at the time of the December 2019 rating decision. Therefore, a remand for an examination and/or opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).

Consequently, service connection for obstructive sleep apnea is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability.

The Veteran contends that she is entitled to a higher disability rating for her lumbar spine disability. For the entire appeal period, her lumbar spine disability is rated as 20 percent disabling pursuant to DC 5237.

The Veteran was afforded a VA examination in December 2019. The examiner noted that the Veteran's range of motion was limited to 50 degrees with flexion and 0 degrees extension with repeated use. Additionally, it was noted that the Veteran is unable to lift, bend, or get off the floor from lying to standing unassisted. However, the examiner found that the Veteran did not have ankylosis of the spine. In Chavis v. McDonough, 34 Vet. App. 1 (Apr. 16, 2021), the Court Appeals for Veterans Claims (Court) held that, in assessing musculoskeletal disabilities, the Board must address whether ankylosis can be met by symptoms representing the functional equivalent of ankylosis. Therefore, in light of the documented symptoms, the Board finds an opinion on whether the Veteran's lumbosacral strain results in the functional equivalent of ankylosis is needed.

Finally, the Board notes that the Veteran reported radiating pain down the bilateral legs as a result of her lumbar spine disability. However, the examination report does not address such symptoms or indicate whether her lumbar spine disability results in radiculopathy of the bilateral lower extremities. Therefore, on Remand, the examiner should offer an opinion as to whether the Veteran has radiculopathy of the bilateral lower extremities associated with her service-connected lumbosacral strain.

Not addressing such matters was a pre-decisional duty to assist error, and the Board must remand for addendum opinions. See 38 C.F.R. § 20.802(a).

2. Entitlement to service connection for a hysterectomy.

The Veteran contends that she underwent a hysterectomy as a result of an injury, event, or illness during her active-duty service. Specifically, at the July 2024 Board hearing, she testified that after she entered service, she began experiencing irregular menstrual cycles, heavy bleeding, and pelvic pain, which continued following her separation. Doctors later informed her that a hysterectomy would alleviate her symptoms, and she underwent a partial hysterectomy in September 2017. See July 2024 Hearing Transcript.

A review of the Veteran's service treatment records (STRs) reflects complaints of and treatment for pelvic pain and irregular menses with heavy, prolonged, and severe bleeding in April 1988.

However, a VA examination and/or opinion addressing the nature and etiology of the Veteran's hysterectomy has not been obtained. Here, the Board finds that the criteria for a VA examination have been satisfied. 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) (2017).

Therefore, a remand is necessary in order to cure a pre-decisional duty-to-assist error, and the Board must remand for a VA examination. See 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

1. Forward the record, to include a copy of this Remand, to an appropriate VA examiner in order to obtain an addendum opinion regarding the Veteran's lumbar spine disability. Following a full review of the record, the examiner should offer opinions as to the following:

(A) Whether the Veteran
5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i) (2017).

Therefore, a remand is necessary in order to cure a pre-decisional duty-to-assist error, and the Board must remand for a VA examination. See 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

(A) Whether the Veteran's lumbar spine disability resulted in ankylosis, or the functional equivalent of ankylosis.

(B) Whether the Veteran's lumbar spine disability resulted in radiculopathy of the bilateral lower extremities.

A rationale for any opinion offered should be provided.

2. Schedule the Veteran for a VA examination for her hysterectomy. Following a full review of the record, to include a copy of this Remand, the clinician should opine whether the Veteran's hysterectomy is at least as likely as not a result of her military service.

In offering an opinion, the examiner should address the treatment for pelvic pain and irregular menses with heavy, prolonged and severe bleeding in April 1988.

(continued on next page)?

A rationale for any opinion offered should be provided.

W. Daknis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Waite, Jennifer

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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