NEOPLASMS MALIGNANT ANY SPECIFIED PART OF RESPIRATORY SYSTEM

MICHAEL MARTIN · 2026 · Case ID: A26034038

MIXED

Summary

The Veteran served on active duty from April 1969 to October 1971. The Veteran sought service connection for lung cancer, claiming it was due to toxic herbicide exposure during service in Vietnam. The Board found that while the Regional Office (RO) had favorably conceded a disability based on VA treatment reports indicating a history of lung nodules and upper lobe removal, the Veteran did not have a current diagnosis of lung cancer. Medical evidence from 2019 to 2022, including CT scans, bronchoscopies, and biopsies, showed no malignant cells, but rather pulmonary aspergillosis, a fungal infection. The Board noted that the Veteran's service treatment records were silent regarding any in-service condition related to this fungal diagnosis, and pulmonary aspergillosis is not a presumptive condition linked to herbicide exposure. Consequently, the Board denied service connection for lung cancer due to the lack of a current diagnosis of malignancy. The Board also remanded claims for service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, and for hypertension as secondary to the psychiatric disorder. The remand was based on competent evidence of a current psychiatric disability and a claimed in-service stressor, necessitating a VA examination to determine the nature and etiology of the psychiatric condition and its service connection.

Rationale

No current diagnosis of lung cancer established.; Medical evidence showed pulmonary aspergillosis, not malignancy.; Pulmonary aspergillosis is not a presumptive condition for herbicide exposure.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

220912-275340

Full Decision Text

Citation Nr: A26034038
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 220912-275340
DATE: April 14, 2026

ORDER

Entitlement to service connection for lung cancer is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded.

Entitlement to service connection for hypertension as secondary to an acquired psychiatric disorder is remanded.

FINDING OF FACT

1. The evidence of record does not demonstrate that the Veteran has had a diagnosis of lung cancer during or approximate to the pendency of the claim.

2. Lung nodules and pulmonary aspergillosis were not present until many years after service and are not shown to be related to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a lung disorder, to include lung cancer, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307 (a)(6), 3.309 (e).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1969 to October 1971.

The rating decision on appeal was issued in June 2022 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. This appeal has been advanced on the Board of Veterans' Appeals (Board) docket pursuant to 38 C.F.R. § 20.902 (c).

In the September 12, 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 5, 2026. A transcript of the hearing has been associated with the claims file.

Therefore, the Board may only consider the evidence of record at the time of the June 2022 Regional Office (RO) decision on appeal, 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). If evidence was submitted either (1) during the period after the RO 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.

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.

However, because the Board is remanding the claims of entitlement to service connection for an acquired psychiatric disorder and hypertension, any evidence the Board could not consider will be considered by the RO in the adjudication of those claims. 38 C.F.R. § 3.103 (c)(2)(ii).

Neither the Veteran nor the Veteran's representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided in this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Entitlement to service connection for lung cancer

The Veteran seeks entitlement to presumptive service connection for lung cancer as due to toxic exposure to herbicides. See August 2020 VA
1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Entitlement to service connection for lung cancer

The Veteran seeks entitlement to presumptive service connection for lung cancer as due to toxic exposure to herbicides. See August 2020 VA Form 21-526EZ, September 2022 VA Form 10182, and January 2026 Board hearing transcript.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.?38 U.S.C. §§ 1110, 1131;?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).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Section 3.307 (d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i).

A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.307 (d). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e), including respiratory cancers. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(ii). When a claimed disability is not included as presumptive disorder, a veteran may nevertheless establish service connection-based evidence of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure).

There is no basis for service connection in the absence of a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). A disability must be present at the time a claim for VA disability compensation is filed, or during or contemporary to the pendency of the claim, in order to be service connected. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

As a preliminary matter, in the June 2022 rating decision on appeal, the RO made the favorable finding that the Veteran has been diagnosed with
§§ 1110, 1131; 38 C.F.R. § 3.303; Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). A disability must be present at the time a claim for VA disability compensation is filed, or during or contemporary to the pendency of the claim, in order to be service connected. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

As a preliminary matter, in the June 2022 rating decision on appeal, the RO made the favorable finding that the Veteran has been diagnosed with a disability based on VA treatment reports that indicated a history of upper lobe removal due to lung nodules. This favorable finding is binding on the Board. See 38 C.F.R. § 3.104 (c). The RO also found that the required Republic of Vietnam service was not shown, nor was there evidence of exposure to herbicides during military service.

Although the RO conceded a disability, a review of the Veteran's VA treatment records for consideration indicates that the Veteran has not been diagnosed with lung cancer, which is a disease that may be presumptively linked to herbicide agent exposure. See 38 C.F.R. § 3.309 (e).

In November 2019, the Veteran was referred for VA lung cancer screening due to a smoking history. A November 2019 chest CT showed peripheral right upper lobe airspace consolidation with adjacent parenchymal distortion and air bronchograms. The image report indicated that malignancy was a diagnostic consideration, however scarring may have an overlap of imaging appearance. In December 2019 the Veteran underwent a bronchoscopy. Cytology showed no malignant cells. A December 2019 chest CT showed persistent right upper lung consolidative lesion. In January 2020, the Veteran underwent a lung biopsy. The pathology report showed no carcinoma identified. In January 2020 an interventional radiology biopsy was performed which showed no malignant cells, but sparse sample. A February 2020 navigational bronchoscopy was also negative for malignancy.

In May 2020, the Veteran underwent a VATS [video-assisted thoracoscopic surgery] right upper lobe wedge resection. Pathology was negative for malignancy but notable for focal colonies of fungal hyphae that are septated, show acute angle branching, and surrounded by proteinaceous debris, most suggestive of Aspergillus spp. A May 2021 lung cancer screening note stated that the most recent May 2021 CT showed emphysema with no acute process. A May 2022 CT showed small left upper lobe nodules and a follow up CT was recommended in 12 months.

In summary, although the Veteran underwent several tests and surgical procedures to determine if he had lung cancer from 2019 to 2022, the medical evidence of record indicates that he did not have lung cancer and was found to have pulmonary aspergillosis, a fungal infection, that was treated with voriconazole. See March 2022 VA primary care record. The Veteran's service treatment records (STRs) were silent for any in-service disease or injury that could plausibly be connected to the Veteran's 2020 pulmonary aspergillosis diagnosis. Pulmonary aspergillosis and right upper lung lobectomy are not diseases that could be presumptively linked to herbicide agent exposure, in the event the Board were to find that the Veteran was exposed. See 38 C.F.R. § 3.309 (e). The Board finds that the claim for service connection for lung cancer must be denied because a current diagnosis has not been established by competent evidence. As the Board finds the evidence to be persuasively against service connection for a lung disability, to include lung cancer, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is remanded.

The Veteran asserts that he has PTSD that is causally related to a stressful in-service event. In a September 2020 "Statement in Support of Claim for PTSD," he stated that after a rogue wave hit his ship, he and a number of other service members were assigned to attach a huge cable to the corner of an aircraft elevator that had been knocked loose and almost lost, and he was terrified of going overboard and drowning.

As a preliminary matter, in the June 2022
ough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is remanded.

As a preliminary matter, in the June 2022 rating decision on appeal, the RO stated the evidence did not show a current diagnosed disability. However, VA treatment records indicate that the Veteran started mental health counseling with a psychologist in August 2020. His initial diagnoses included major depressive disorder and rule out PTSD. In June 2021, he reported a history of trauma associated with verbal abuse from his father as a child and with his 9-month deployment to Vietnam. The clinician noted that the Veteran's score on the PCL-5 of 44 was in line with a diagnosis of PTSD. In an August 2021 VA counseling record, his diagnoses were listed as major depressive disorder and PTSD.

Under the AMA, the Board must remand a claim to correct an error by the RO to satisfy its duty to assist the claimant if the error occurred prior to the RO decision on appeal. See 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). VA must provide an examination when there is competent evidence of a current disability, evidence of an in-service event, injury or disease, indication that a current disability may be service related (to include secondary service connection), and there is otherwise insufficient medical evidence to make a decision. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id. at 83.

Based on the Veteran's September 2020 statement and his VA treatment records, the Board is satisfied that the McLendon elements were met prior to the June 2022 rating decision on appeal, which warrants a remand for a VA examination and opinion to assess the nature and etiology of his claimed psychiatric disability. The Board also notes that although the Veteran initially sought entitlement to service connection for PTSD, his claim has been recharacterized more broadly to encompass all diagnosed acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

2. Entitlement to service connection for hypertension as secondary to an acquired psychiatric disorder is remanded.

The Veteran seeks entitlement to service connection for hypertension as secondary to an acquired psychiatric disorder and as presumptively linked to in-service herbicide agent exposure. See January 2026 Board hearing transcript.

As a preliminary matter, in the June 2022 rating decision on appeal, the RO favorably found that the Veteran has been diagnosed with a disability, according to VA treatment records. This favorable finding is binding on the Board. See 38 C.F.R. § 3.104 (c). The Board also notes that a May 2021 VA primary care record listed hypertension as a diagnosis.

Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310 (a). Secondary service connection requires: (1) a service-connected disability; (2) a nonservice-connected disability; and (3) evidence that the nonservice-connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability and not due to the natural progress of the nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In the current decision, the Board is remanding the claim for entitlement to service connection for an acquired psychiatric disorder for additional development. The adjudication of this issue by the RO would impact the issue of service connection for hypertension. Thus, this issue is inextricably intertwined with the remanded issue of service connection for an acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to pie
ervice-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Therefore, the adjudication of the issue of entitlement to service connection for hypertension must be deferred and remanded pending the proposed development in the other remanded issue.

The matters are REMANDED for the following actions:

1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed acquired psychiatric disability. The examiner must review the claims file.

The examiner is asked to provide a response to the following:

What psychiatric diagnoses have been present during the pendency of this claim?

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed acquired psychiatric disorder began during active service, or is otherwise related to an in-service disease, injury, or event?

In providing the requested opinion, consider the Veteran's description of the in-service stressor and symptoms as well as post-service symptoms. The Board does not make any determination as to the credibility of these statements at this time.

All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed.

The examiner is reminded that a lack of documented treatment alone is not a sufficient basis for a negative opinion. Reliance on the absence of documented treatment alone will render an opinion inadequate.

2. Thereafter, adjudicate the Veteran's claims after consideration of the pertinent evidence.

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Wolfe, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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