HYPERTENSIVE HEART DISEASE

Summary

The Veteran served on active duty in the Army from September 1979 to September 1982. He appeals the denial of service connection for congestive heart failure and sleep apnea, claiming these conditions are attributable to environmental hazards and toxic substances encountered at Fort McClellan, Alabama, and Frankfurt, Germany, including alleged exposure to nerve gas and mustard gas. The Veteran also cited general exposures related to his military occupational specialty (MOS) as military police. The Board acknowledged the Veteran's current diagnoses of congestive heart failure and obstructive sleep apnea, supported by recent private medical records. However, the Board found that the service treatment records from 1979-1982 did not contain any complaints, findings, or diagnoses related to cardiac conditions or sleep apnea, nor did the Veteran report continuous symptoms post-service. The Board determined that the onset of these conditions occurred many years after service, well outside the one-year presumptive period for chronic diseases like congestive heart failure. While the Veteran's assertions about exposure at Fort McClellan were noted, the Board found them vague and conclusory, lacking specific details about the circumstances of exposure or impact. The Board also concluded that the Veteran's claims did not warrant a TERA (toxic exposure risk activity) examination under the PACT Act, as the evidence did not sufficiently indicate an association between the claimed disabilities and the alleged toxic exposures. The Board found the Veteran competent to report symptoms but not to determine the etiology of his conditions, and that the evidence weighed against service connection, thus denying the claims.

Rationale

No evidence of inception during service; No manifestation within one-year presumptive period; No continuity of symptomatology post-service; Vague assertions of exposure insufficient for nexus or TERA exam

Full Decision Text

Citation Nr: A26033109
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 250408-533731
DATE: April 9, 2026

ORDER

Service connection for congestive heart failure is denied.

Service connection for sleep apnea is denied.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran's currently diagnosed congestive heart failure began during active service, was manifest to a compensable degree within the first post-service year, or is otherwise related to an in-service injury or disease.  

2. The evidence of record persuasively weighs against finding that the Veteran's currently diagnosed obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease.  

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for congestive heart failure have not been met.  38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for entitlement to service connection for sleep apnea have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty from September 1979 to September 1982.  This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2025 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the March 2025 AOJ decision on appeal.  38 C.F.R. § 20.301.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 20.801.  

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.  

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. §§ 1131, 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).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Congestive heart failure is one of the listed diseases, namely, cardiovascular disease.  In addition, such chronic disease is presumed to have been incurred in service if it manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1103(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a).  

A VA memorandum of record, dated in December 2024, states that the Veteran's claims file does not contain authoritative data to verify that he has had military service that constitutes presumptive toxic exposure per 38
 708 F.3d 1331 (Fed. Cir. 2013).  Congestive heart failure is one of the listed diseases, namely, cardiovascular disease.  In addition, such chronic disease is presumed to have been incurred in service if it manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1103(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a).  

A VA memorandum of record, dated in December 2024, states that the Veteran's claims file does not contain authoritative data to verify that he has had military service that constitutes presumptive toxic exposure per 38 U.S.C. § 1119.  In that regard, on August 10, 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (or, PACT Act), Pub. L. No. 117-168, § 303, 136 Stat. 1759, 1779 (2022), enacted which expands VA health care and benefits for certain veterans exposed to burn pits and other toxic substances.  A relevant element of the PACT Act is that it established a presumption for more than 20 diseases, including the following, as due to in-service exposure to burn pits and other toxins: asthma first diagnosed after service, head cancer of any type, neck cancer of any type, respiratory (breathing-related) cancer of any type, gastrointestinal cancer of any type, reproductive cancer of any type, lymphoma cancer of any type, kidney cancer, brain cancer, melanoma, pancreatic cancer, chronic bronchitis, chronic obstructive pulmonary disease, constrictive bronchiolitis or obliterative bronchiolitis, emphysema, granulomatous disease, interstitial lung disease, pleuritis, pulmonary fibrosis, sarcoidosis, chronic sinusitis, chronic rhinitis, and glioblastoma.  See 38 U.S.C. § 1120.  

The PACT Act also requires VA examinations and opinions for veterans with presumed in-service exposure to certain toxins/environmental hazards as part of VA's duty to assist, unless the Secretary determines there is no indication of an association between the disability claimed by the veteran and the toxic exposure risk activity (TERA) for which the veteran submitted evidence.  See 38 U.S.C. § 1168.  On this point, VA claims processors have been instructed to review VBA Letter 20-22-10 (December 22, 2022) (VA Pact Act Policy Letter for Sub-Regulatory Guidance) when adjudicating a PACT Act claim involving a veteran's participation in a TERA.  See 87 Fed. Reg. 78543 (Dec. 22, 2022).  VBA Letter 20-22-10 requires the VA claims processor to secure a VA examination and medical opinion for certain non-presumptive conditions when there is evidence of a veteran's involvement in a TERA, unless a listed exception applies.  

Reasonable doubt, including regarding degree of disability, is to be resolved in favor of the claimant.  38 C.F.R. §§ 3.102.  

Analysis

1. Entitlement to service connection for congestive heart failure

2. Entitlement to service connection for sleep apnea

The Veteran contends that he has congestive heart failure and sleep apnea that is attributable to exposure to environmental hazards while on active duty, particularly at Fort McLellan, Alabama and Frankfurt, Germany.  In a statement received in May 2022, he asserted that he was subjected to "nerve gas and other leaks at Ft. McClellan, AL in the late 1980's."  On a January 2025 claim form, when asked to list all dates and locations of potential exposures, the Veteran indicated exposures from the airspace above any of the following locations throughout service: Fort Hood, Texas; Fort Chaffee, Arkansas; Frankfurt, Germany; and Fort Irwin, California.  He also indicated exposure to mustard gas at Fort McClellan from September 1979 to January 1980.  Additionally, he noted exposure to a military occupational specialty-related toxin.  

The question for the Board is whether the Veteran has a current disability that began during service, was manifest to a compensable degree within the one-year presumptive period (as to the congestive heart failure claim only), or is at least as likely as not related to an in-service injury, event, or disease.    

It is not in dispute that the Veteran has current congestive heart failure and obstructive sleep apnea, as reflected in private medical records dated in December 2024, January 2025, and February 202
, California.  He also indicated exposure to mustard gas at Fort McClellan from September 1979 to January 1980.  Additionally, he noted exposure to a military occupational specialty-related toxin.  

The question for the Board is whether the Veteran has a current disability that began during service, was manifest to a compensable degree within the one-year presumptive period (as to the congestive heart failure claim only), or is at least as likely as not related to an in-service injury, event, or disease.    

It is not in dispute that the Veteran has current congestive heart failure and obstructive sleep apnea, as reflected in private medical records dated in December 2024, January 2025, and February 2025.  Nevertheless, the Board concludes that the evidence of record persuasively weighs against finding that his current congestive heart failure and obstructive sleep apnea began during service, was manifest to a compensable degree within one year following service discharge (as to the congestive heart failure claim only), or was otherwise related to an injury, event, or disease in service.  

The Veteran served on active duty from September 1979 to September 1982.  Service treatment records do not show any complaints, findings, or diagnoses of a cardiac-related condition such as congestive heart failure or of sleep apnea.  The Veteran opted not to have a physical examination at separation.  Therefore, on the basis of the service treatment records alone, service connection for congestive heart failure and sleep apnea under 38 U.S.C. § 1131 and 38 C.F.R. § 3.303(a), based on inception in service, is not warranted.  

Post-service records do not document any complaints, treatment, or diagnosis of congestive heart failure or sleep apnea until many years after the Veteran's September 1982 military discharge.  Private medical records in December 2024 indicate he had an assessment that included acute systolic heart failure, as shown in various cardiac tests the previous month, and obstructive sleep apnea (but with a need for a sleep study).  A private home sleep study (through Northwestern Medicine) in February 2025 showed clinical findings that were indicative of severe sleep apnea with a diagnosis of obstructive sleep apnea.  

This evidence demonstrates that the initial manifestation or development of congestive heart failure was well beyond the one-year presumptive period after discharge from service for cardiovascular disease as a chronic disease under 38 U.S.C. § 1112 and 38 C.F.R. §§ 3.307(a) and 3.309(a).  Thus, service connection for congestive heart failure, based on presumed incurrence in service, is not established.  

Alternatively, a showing of continuity of symptoms after service can also support the claim.  38 C.F.R. § 3.303(b).  This theory applies to any condition that has been recognized as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As the Veteran's congestive heart failure is listed among the "chronic" diseases under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology or chronicity will be addressed.  However, service connection on this basis is not warranted.  The records contemporaneous with his service (1979 to 1982) and in the immediate years that followed service do not demonstrate continuous cardiac-related symptoms.  Nor has the Veteran expressly asserted cardiac-related symptoms continuously since service.  In short, with regard to establishing service connection based on chronicity and continuity of symptomatology (38 C.F.R. § 3.303(b)), the evidence is against the finding that the current congestive heart failure had onset during service or manifested within one year after discharge.  

Notwithstanding the foregoing, under 38 C.F.R. § 3.303(d), service connection may still be granted on a direct basis if the evidence shows that the claimed disability, which was first diagnosed years after active service, was etiologically related to disease or injury in service.  This question has not been addressed by any examiner, and the Veteran did not undergo a VA examination in connection with his claims.  However, a remand to obtain a medical examination and opinion is unnecessary and doing so would serve no useful or meaningful purpose in this case.  Rather, it would only result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

Relative to the duty to provide assistance, the RO has obtained the Veteran's service treatment records, service personnel records, and relevant post-service records,
 years after active service, was etiologically related to disease or injury in service.  This question has not been addressed by any examiner, and the Veteran did not undergo a VA examination in connection with his claims.  However, a remand to obtain a medical examination and opinion is unnecessary and doing so would serve no useful or meaningful purpose in this case.  Rather, it would only result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

Relative to the duty to provide assistance, the RO has obtained the Veteran's service treatment records, service personnel records, and relevant post-service records, to include private records for which the Veteran had provided a medical release authorizing the VA to obtain them on his behalf (or attempted to obtain all records from Northwestern Medicine).  Nevertheless, a medical examination and opinion is not necessary to decide the claims.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Further development is not required because there is no record of the claimed disabilities, or symptoms or complaints relative thereto, during or contemporaneous with (i.e., within a year of discharge) the time of service.  Nor has the Veteran claimed to have had the disability, or symptoms of the disability, during or contemporaneous with the time of service.  Private medical records on file show clear diagnoses and treatment for the claimed disabilities many years after service discharge, but there is no evidence to suggest that they are associated with (or resulted from) an injury, event, or disease in service, to include environmental hazardous exposures and toxic substances while on active duty.  

In that regard, there is no basis to remand this case to the RO to afford the Veteran a TERA (toxic exposure risk activity) examination, pursuant to the PACT Act.  VA is required to provide a disability examination and/or obtain a medical opinion when a veteran submits a claim for compensation and has evidence of a disability and participation in a TERA but the evidence is not sufficient to establish service connection for the disability.  38 C.F.R. § 1168(a).  Such an examination is not compulsory if the VA determines there is no indication of an association between the disability claimed by the veteran and the TERA for which the veteran submitted evidence.  38 U.S.C. § 1168(b).  The sub-regulatory guidance specifies circumstances in which an exception to furnishing a TERA examination would apply.  See VBA Letter 20-22-10, Exception to TERA Examination and Medical Opinion Requirement at pages 10-13 (December 22, 2022).  Here, the Veteran has made vague assertions of having been exposed to environmental hazards and toxic substances throughout his period of service at various bases.  He specifically noted mustard gas and "nerve gas and other leaks" at Fort McClellan during the first few months of service, but he did not furnish any descriptions about the circumstances of such exposures and how he in particular was involved and/or impacted.  He also stated that he had MOS-related toxin exposure, but he did not provide any details (e.g., what substances, duration and frequency of such exposure, where exactly exposed) regarding the nature of such exposures during the performance of his MOS duties as military police, as shown in service personnel records.  

It is noted that VA has recognized that some individuals may have been exposed to hazardous materials during their service at Fort McClellan, a now-closed Army base that was a major training site for various groups to include the Army Military Police School, the U.S. Army Chemical Corps School, and the Army Combat Development Command Chemical/Biological/Radiological Agency.  See, e.g., https://www.publichealth.va.gov/exposures/fort-mcclellan/.  The Veteran evidently went to military police school (given his MOS), but there is no evidence to suggest he went to any other school at Fort McClellan or that he would have had exposure to mustard gas and/or nerve gas, as claimed.   

In light of the foregoing, the Board is not persuaded that the Veteran has provided enough lay evidence to overcome the AOJ's finding that the Veteran did not participate in a TERA.  See December 2024 VA TERA memorandum.  He has essentially given vague, conclusory statements that an in-service event caused his current claimed disabilities, but this is not sufficient to entitle him to a medical examination.  See e.g., Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized
 that he would have had exposure to mustard gas and/or nerve gas, as claimed.   

In light of the foregoing, the Board is not persuaded that the Veteran has provided enough lay evidence to overcome the AOJ's finding that the Veteran did not participate in a TERA.  See December 2024 VA TERA memorandum.  He has essentially given vague, conclusory statements that an in-service event caused his current claimed disabilities, but this is not sufficient to entitle him to a medical examination.  See e.g., Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B)]").

As to the Veteran's sincere belief that his congestive heart failure and sleep apnea are related to service, he is competent to report observable symptoms that he has personally experienced, but he is not competent to provide a nexus opinion on the matter (i.e., to determine the etiology of his current conditions).  The nexus question here is medically complex because it requires medical knowledge of the known etiology and pathology of congestive heart failure and sleep apnea, and of how to interpret whether the clinically recorded data and compiled histories support one possible etiology or pathology instead of an alternate one.  The Veteran's current congestive heart failure and obstructive sleep apnea involve internal disease processes that are not capable of lay observation.  They are outside his competence because the record does not show that he has the medical training or credentials necessary to determine the etiology of his current disabilities.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).    

As the evidence of record persuasively weighs against the Veteran's claims of service connection for congestive heart failure and sleep apnea, the benefit-of-the-doubt standard of proof does not apply, and the appeal in the matters must be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).  

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Breitbeil, Debbie

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.