Case A26036118

D. JOHNSON · 2026 · Case ID: A26036118

DENIED

Summary

The veteran, who served from August 1988 to August 1992, appeals the denial of service connection for lung lesions/spots and seeks a higher initial rating for migraine. The Board dismissed the migraine issue as withdrawn by the veteran at the hearing on February 11, 2025, noting that the withdrawal was explicit, unambiguous, and made with understanding of the consequences. For the lung lesions/spots claim, the veteran testified at the hearing about spots discovered in January 2019 during a kidney stone evaluation, weight loss since January 2024, and a private doctor's opinion linking the weight loss to lung nodules. He also testified to burn pit exposure during Desert Storm in Saudi Arabia, UAE, Bahrain, and Dhahran from July 1991 to September 1991. The Board found the evidence weighed against the claim, noting the absence of a current diagnosis of lung lesions/spots. Service treatment records did not reflect any lung issues, and the separation examination showed normal findings with denial of respiratory symptoms, though he did check a box for a growth, explaining it was for his knee. Post-service records substantiated kidney stone treatment but not lung conditions. The Board found the McLendon criteria for a VA examination were not met, as there was no evidence of in-service manifestation or presumptive period, no indication of association with service, and no observable symptoms since service. While acknowledging the veteran's Persian Gulf status and the possibility of undiagnosed illness, the Board noted no medical opinion linked his symptoms to such an illness, and the relevant testimony occurred after the AOJ decision. The Board also noted the veteran did not report pain. As the evidence weighed against the claim, the benefit of the doubt doctrine did not apply, and service connection for lung lesions/spots was denied.

Rationale

Veteran withdrew appeal for higher rating for migraine; Withdrawal was explicit, unambiguous, and made with understanding of consequences; Board dismissed issue as veteran withdrew appeal

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210227-142580

Full Decision Text

Citation Nr: A26036118
Decision Date: 04/17/26 Archive Date: 04/17/26

DOCKET NO. 210227-142580
DATE: April 17, 2026

ORDER

Entitlement to a higher initial rating in excess of 50 percent for migraine, including migraine variants, is dismissed.

Service connection for lesions/spots on lungs is denied.

FINDINGS OF FACT

1. On February 11, 2025, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the issue of entitlement to a higher initial rating for migraine including migraine variants, is requested.

2. The evidence of record persuasively weighs against finding that the Veteran has had lesions/spots on his lungs at any time during or approximate to the pendency of the claim.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the issue of entitlement to a higher initial rating for migraine including migraine variants, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for lesions/spots on lungs are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1988 to August 1992.

The rating decision on appeal was issued in January 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the February 27, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 11, 2025.

Therefore, the Board may only consider the evidence of record at the time of the January 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or 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.

Specifically, the Board has considered evidence received prior to the January 6, 2021, rating decision. Evidence submitted by the Veteran or his representative from February 11, 2025 (the date of the Veteran's hearing) to May 12, 2025, is also eligible for review. Any evidence submitted from January 7, 2021, to February 10, 2025, is ineligible to be reviewed. Likewise, any evidence submitted after May 12, 2025, is ineligible for review.

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.

Entitlement to a higher initial rating in excess of 50 percent for migraine including migraine variants, is dismissed.

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). 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 an appellant or an appellant's authorized representative. Id.

An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

On February 11, 2025, the Veteran withdrew the issue
ulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by an appellant or an appellant's authorized representative. Id.

On February 11, 2025, the Veteran withdrew the issue of entitlement to a higher initial rating for migraine including migraine variants, orally at the hearing. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeal entitlement to a higher initial rating for migraine including migraine variants and it is dismissed.

Service connection for lesions/spots on lungs is denied.

The Veteran contends that he has lesions/spots on his lungs as a result of being exposed to Saudi oil fires while fixing planes in the desert.

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

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of lesions/spots on his lungs and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

At his February 2025 Board hearing, the Veteran testified that spots/lesions on his lung were discovered during a kidney stone evaluation in January 2019. He also testified that he lost 42 pounds since January 2024; and that a private doctor has told him that weight loss could be due to lung nodules. Finally, he testified that he was exposed to burn pits while he was deployed as an F-14 engine mechanic during Desert Storm. He stated that he had service in Saudi Arabia, UAE, Bahrain, and Dhahran from July 1991 to September 1991.

In its January 2021 rating decision, the AOJ favorably found that the Veteran received the Southwest Asia Service Medal and that his military occupation specialty (MOS) was a Systems Aircraft Organizational Maintenance Technician. It denied the claim because it found that the evidence did not show a current diagnosed disability.

The service treatment records fail to reflect any findings attributed to lung lesions or lung spots. The Veteran's July 1992 separation examination yielded normal findings; and he completed a July 1992 Report of Medical History in which he stated that he was in good health. He denied, by checked box, that he ever had shortness of breath; pain or pressure in chest; or a chronic cough. He checked that he had a tumor, growth, cyst, or cancer. However, he then explained that he was referring to a growth in his right knee from 2 12 years earlier.

Post service treatment records include diagnoses of polyuria; hematuria; diabetes mellitus; kidney stone; and nicotine dependence, other tobacco product, uncomplicated. The records substantiate the Veteran's testimony that he was treated for a kidney stone. However, the records fail to reflect any disability of the lungs, to include spots or lesions.

The Board notes that the VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his alleged lung spots/lesions. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is not required.

McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.

The McLendon elements are not met in this case. There is no evidence establishing that lung spots/lesions manifested during service or an applicable presumptive period. Treatment records show the Veteran was not diagnosed with lung spots/lesions at any time. There also is no indication that the alleged disability may be associated with the Veteran's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon, 79 Vet.App. at 83 (quotations omitted). The record contains no such evidence here. Treatment records show the Veteran was not diagnosed with a lung disability. While the Veteran would be competent to report observable symptoms since service, he has not done so. In fact, he has not alleged any lung-specific symptoms. He has testified to weight loss, fatigue, and loss of strength, all of which allegedly occurred decades after service. Consequently, any contention as to continuous symptoms since service would not be credible insofar as they directly would contradict the evidence, to include the Veteran's own denial of such symptoms on the July 1992 Report of Medical History he completed upon separation from service. The record contains no medical evidence suggesting a causal link. Though the threshold for this element is "low," McLendon, 79 Vet.App. at 83, the record must contain something other than a "conclusory generalized statement" to establish the element. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010).

The Board notes that as the Veteran is a considered a Persian Gulf War Veteran, his symptoms might have been considered an undiagnosed illness. Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026 and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1).

However, there is no medical opinion attributing the Veteran's symptoms to an undiagnosed illness. Moreover, the AOD's failure to get an opinion addressing this possibility cannot be considered a pre-decisional duty to assist error insofar as the Veteran first testified as to these symptoms (fatigue, weight loss, loss of strength) until his February 2025 hearing (much after the January 2021 rating decision.

Finally, the Board notes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In this case, the Veteran has not reported pain.

While the Veteran believes there is a current diagnosis of lung lesions/spots, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently
the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In this case, the Veteran has not reported pain.

At the Veteran's Board hearing, he was encouraged to submit evidence of further treatment and/or diagnosis within the next 90 days. No such evidence was submitted.

As the evidence persuasively weighs against the claim; the benefit of the doubt doctrine does not apply. Consequently, the service connection claim for lesions/spots on lungs must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Prem, 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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