Case A26038754

M. M. CELLI · 2026 · Case ID: A26038754

DENIED

Summary

The Veteran, who served honorably in the U.S. Navy from June 1985 to April 1988, appealed the denial of service connection for GERD and headaches. The appeal for anxiety was withdrawn by the Veteran and representative at a November 2024 hearing and subsequently dismissed by the Board. For GERD, the Board found no current diagnosis or in-service event prior to the August 2020 rating decision, and the later submitted private records and independent medical evaluation were deemed insufficient. The private evaluation opined GERD was secondary to OSA (not service-connected) and did not address nexus to service or service-connected disabilities. The Board found the Veteran's lay testimony regarding GERD etiology incompetent. For headaches, the Board found no current diagnosis or in-service event prior to the August 2020 decision. Later submitted private records diagnosed chronic daily headaches, but the independent medical evaluation was limited to OSA and did not address nexus to service or service-connected disabilities. The Veteran's lay testimony regarding headaches being related to his emotional state and unspecified depressive disorder was deemed incompetent for medical etiology. The Board denied both GERD and headache claims, finding no evidence of service connection or aggravation by service-connected conditions.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210621-166981

Full Decision Text

Citation Nr: A26038754
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 210621-166981
DATE: April 27, 2026

ORDER

The appeal pertaining to entitlement to service connection for anxiety is dismissed.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied.

Entitlement to service connection for headaches is denied.

FINDINGS OF FACT

1. On November 19, 2024, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received a request from the Veteran and the authorized representative to withdraw the appeal pertaining to entitlement to service connection for anxiety.

2. The Veteran's GERD is not shown to be causally or etiologically related to military service and was not caused or aggravated by a service-connected disability.

3. The Veteran's headache disability is not shown to be causally or etiologically related to military service, did not manifest to a compensable degree within one year of separation from active duty, and was not caused or aggravated by a service-connected disability.

CONCLUSIONS OF LAW

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

2. The criteria for service connection for GERD have not been met. 38 U.S.C.

§§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for headache disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Navy from June 1985 to April 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision and a December 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on November 19, 2024. Therefore, the Board may only consider the evidence of record at the time of the August 2020 and December 2020 agency of original jurisdiction (AOJ) decisions 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.

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.

Issues on Appeal

The Veteran testified before a Veterans Law Judge during a November 2024 Board hearing. On the same date this hearing was held, two other hearings were also held addressing two additional and separate appeal streams under the AMA. These separate appeal streams included entitlement to service connection for OSA and entitlement to a rating in excess of 70 percent for unspecified depressive disorder. In two separate March 2026 decisions, the Board remanded the Veteran's claim for entitlement to service connection for OSA and denied the Veteran's claim for entitlement to a rating in excess of 70 percent for unspecified depressive disorder.

The Board acknowledges that secondary issues are often remanded solely for being inextricably intertwined with a primary issue that is remanded for evidentiary development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). However, the Board finds that a pre-decisional duty to assist error with respect to the service connection claim for the primary OSA disability does not extend to the secondary service connection claims at issue here. Because the issues are
depressive disorder. In two separate March 2026 decisions, the Board remanded the Veteran's claim for entitlement to service connection for OSA and denied the Veteran's claim for entitlement to a rating in excess of 70 percent for unspecified depressive disorder.

The Board acknowledges that secondary issues are often remanded solely for being inextricably intertwined with a primary issue that is remanded for evidentiary development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). However, the Board finds that a pre-decisional duty to assist error with respect to the service connection claim for the primary OSA disability does not extend to the secondary service connection claims at issue here. Because the issues are part of separate appeal streams, they are not inextricably intertwined, and remand is not warranted on such basis.

1. Entitlement to service connection for anxiety.

On November 19, 2024, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and the authorized representative that a withdrawal of the appeal pertaining to the issue of service connection for anxiety was requested.

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 November 19, 2024, the Veteran and his authorized representative withdrew the issue of entitlement to service connection for anxiety orally at the Board hearing. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeal pertaining to entitlement to service connection for anxiety, and it is dismissed.

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. Generally, service connection requires three elements: (1) a current disability diagnosis; (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 also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires sufficient evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

2. Entitlement to service connection for GERD, to include as secondary to service-connected disability, is denied.

The Veteran contends that he has GERD that is due to or aggravated by his OSA. In the alternative, during the November 2024 hearing, the Veteran's representative asserted that his GERD may be due to or aggravated by medication used to treat service-connected disabilities.

In the August 2020 rating decision on appeal, the AOJ found that there was no evidence of a current diagnosis of GERD, no evidence of any in-service injury, event, or illness related to GERD and/or symptoms of GERD, and that service connection is not in effect for his claimed primary OSA disability.

Throughout the appeal period, the Veteran is in receipt of service connection for unspecified depressive disorder, effective from August 22, 2018; tinnitus
that he has GERD that is due to or aggravated by his OSA. In the alternative, during the November 2024 hearing, the Veteran's representative asserted that his GERD may be due to or aggravated by medication used to treat service-connected disabilities.

Throughout the appeal period, the Veteran is in receipt of service connection for unspecified depressive disorder, effective from August 22, 2018; tinnitus, effective from March 30, 2016; chip fracture proximal phalanx right, 5th digit (dominant hand), effective from March 30, 2016; and hearing loss, left ear, effective from December 20, 2017. The Veteran is not in receipt of service connection for OSA at any time during the appeal period.

Private treatment records submitted within an applicable evidence window reveal a February 2024 diagnosis and treatment of GERD by the Veteran's private clinician.

Additionally, the Veteran submitted a February 2025 independent medical evaluation (independent evaluation). The February 2025 private clinician opined that the Veteran's GERD is at least as likely as not secondary to his OSA and references associations between generalized gastrointestinal diseases and risk factors related to medications. Notably, such does not include references to the Veteran's specific medications and relevant medical history related to a service-connected disability. In addition, the February 2025 independent evaluation does not include any opinion as to whether the Veteran's GERD began during or is otherwise related to his service or, alternatively, is due to, or aggravated by, a current service-connected disability, to include any medication prescribed therefor. As a result, the Board does not afford probative value to the February 2025 independent evaluation as such is limited in scope. While it addresses a relationship between the Veteran's GERD and OSA, the latter of which is not service-connected at this time, it does not address a relevant theory of entitlement for which service connection may be granted.

Although the Veteran was not afforded a VA examination for his GERD prior to the August 2020 rating decision on appeal, and there is no other medical nexus opinion associated with the Veteran's file, the Board finds the evidence of record at the time of the August 2020 rating decision on appeal did not trigger a duty to obtain an examination. In this regard, VA is required to provide an examination or medical opinion when such service "is necessary to make a decision on the claim." 38 U.S.C. § 5103(d). A medical examination or opinion is necessary only if (1) the evidence contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the veteran suffered an in-service event, injury or disease; (3) the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury or disease or with another service-connected disability; and (4) the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. Id.; McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006).

Prior to the August 2020 rating decision on appeal, secondary service connection based on a primary OSA disability was the only raised theory of entitlement for service connection for GERD. Additionally, there was no competent evidence of a diagnosed disability or persistent or recurrent symptoms of GERD prior ot the August 2020 rating decision. While the Veteran submitted a June 2020 lay statement requesting service connection for GERD, he did not report or describe any symptoms, treatment, or diagnosis of GERD. No other relevant or probative lay evidence was submitted or associated with the Veteran's file prior to the August 2020 rating decision. The Veteran also submitted June 2020 website with medical articles describing acid reflux, GERD and sleep disorders, but these are not specific to the Veteran and do not include any competent evidence of a current diagnosis of GERD or persistent or recurrent symptoms of disease.

In sum, the February 2024 diagnosis of GERD is the earliest evidence of a current disability and was not added to the Veteran's file until February 6, 2025; therefore, such evidence cannot service as the basis for a pre-decisional duty to assist error. Likewise, the Veteran's November 2024 Board hearing testimony regarding his GERD symptoms may not serve as the basis for a remand as such were not of record at the time of the rating decision on appeal.

The Board has considered the Veteran's
describing acid reflux, GERD and sleep disorders, but these are not specific to the Veteran and do not include any competent evidence of a current diagnosis of GERD or persistent or recurrent symptoms of disease.

The Board has considered the Veteran's assertions as to the etiology of his GERD; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Thus, such may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, he is not competent to opine as to a relationship between his GERD and a service-connected disability.

In summary, the Veteran's GERD is not shown to be causally or etiologically related to his military service and was not caused or aggravated by a service-connected disability, to include medication prescribed for his service-connected disabilities. The evidence is not in at least relative equipoise. Thus, there is no reasonable doubt to resolve in the Veteran's favor, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53.

3. Entitlement to service connection for headaches, to include as secondary to service-connected disability.

The Veteran contends that he has a headache disability that is due to or aggravated by his OSA. In the alternative, during the November 2024 hearing, the Veteran's representative asserted that his headache disability may be due to or aggravated by his service-connected unspecified depressive disorder.

In the August 2020 rating decision on appeal, the AOJ found that there was no evidence of a current diagnosis of a headache disability, no evidence of any in-service injury, event, or illness, and that the Veteran was not service connected for his claimed primary OSA disability.

As noted above, the Veteran's only service-connected disabilities throughout the appeal period are unspecified depressive disorder, tinnitus, chip fracture proximal phalanx right, 5th digit (dominant hand), and hearing loss, left ear.

The Veteran's private treatment records received in February 2025 reveal a January 2023 diagnosis and treatment of "chronic daily headache," by a private psychiatrist. The private treatment record also reflects a February 2023 prescription for topiramate.

In addition to GERD, the February 2025 independent evaluation also considered the Veteran's claimed headache disability. However, the Board again finds that the February 2025 independent evaluation does not deserve probative weight because it is limited to a nexus between the Veteran's headache disability and nonservice-connected OSA. The February 2025 independent evaluation does not include any opinion as to whether the Veteran's headache disability began during or is otherwise related to his service or, in the alternative, is due to or aggravated by a service-connected disability.

The February 2025 private clinician opined that the Veteran's headache disability is at least as likely as not secondary to his OSA, describing multiple studies finding that headaches are a prevalent symptom among individuals with OSA and that OSA is a significant risk factor for the development of headaches. The independent evaluation is silent for any associations with any other risk factors or disabilities, to include unspecified depressive disorder. In other words, the opinion does not incorporate or consider any theory of entitlement other than secondary service connection based on the claimed OSA disability. Therefore, the February 2025 independent evaluation has no probative weight as to whether the Veteran's headache disability is directly related to his service or whether his headache disability is due to or aggravated by any of his service-connected disabilities.

In addition to the medical evidence, the Veteran's November 2024 Board
as not secondary to his OSA, describing multiple studies finding that headaches are a prevalent symptom among individuals with OSA and that OSA is a significant risk factor for the development of headaches. The independent evaluation is silent for any associations with any other risk factors or disabilities, to include unspecified depressive disorder. In other words, the opinion does not incorporate or consider any theory of entitlement other than secondary service connection based on the claimed OSA disability. Therefore, the February 2025 independent evaluation has no probative weight as to whether the Veteran's headache disability is directly related to his service or whether his headache disability is due to or aggravated by any of his service-connected disabilities.

In addition to the medical evidence, the Veteran's November 2024 Board hearing testimony included his lay opinion that his headaches are related to his "emotional state," that he gets headaches when he gets frustrated, and that he gets migraines that are triggered by both sleep apnea and his service-connected unspecified depressive disorder. Although the Veteran is competent to describe the observable symptoms and timing of his headaches, he is not competent to provide evidence as to the nature and etiology of his headaches. Again, while a claimant may be competent to provide diagnoses of simple conditions such as a broken leg, they are not competent to provide evidence on more complex medical questions. Jandreau v. Nicholson, 492 F.3d 1377 n. 4 (Fed. Cir. 2007); see also Colontanio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that the veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the duty to provide a medical opinion on the issue). While the Board does not doubt the Veteran's sincere belief that his headaches are triggered by his unspecified depressive disorder, he has not submitted evidence of or contended that he is a medical professional with the knowledge, education, and training necessary to render such a medical opinion. Accordingly, the Board assigns no probative weight to the Veteran's testimony as to any relationship between his headaches and any service-connected disability.

Although the Veteran was not afforded a VA examination for his claimed headache disability, and there is no other medical nexus opinion associated with the Veteran's file, the Board finds that the evidence of record associated with the Veteran's file prior to the August 2020 rating decision did not trigger the duty to obtain an examination. See 38 U.S.C. § 5103(d), supra; McLendon, supra. Here, secondary service connection based on a primary OSA disability was the only reasonably raised theory of entitlement for service connection for the Veteran's headache disability. The Veteran's medical records do not reflect a competent diagnosis of a headache disability or persistent or recurrent symptoms of disease prior to the August 2020 rating decision on appeal.

The June 2020 lay statement did not report or describe any symptoms, treatment, or diagnosis of headaches. No other relevant lay evidence was submitted or associated with the Veteran's file prior to the August 2020 rating decision. The June 2020 website describing the difference between migraines and sleep apnea headaches was not specific to the Veteran and did not include any competent evidence of a current diagnosed headache disability or persistent or recurrent symptoms of disease. The January 2023 record of a diagnosis of chronic daily headaches is the earliest evidence of a current disability and was not added to the Veteran's file until February 6, 2025, more than four years after the August 2020 rating decision on appeal. Accordingly, the Board finds the McLendon factors were not met at the time of the August 2020 rating decision and, thus, there was no duty to provide a VA examination. Therefore, the claim was adjudicated on the evidence of record at the time of the August 2020 rating decision on appeal, there was no pre-decisional duty to assist error, and remand on such basis is not warranted.

In summary, the competent, probative evidence does not show that a headache disability is directly related to the Veteran's military service or that his headache disability is due to or aggravated by a service-connected disability. Likewise, the probative, competent evidence does not demonstrate that a headache disability manifested to a compensable degree within one year of separation from service. Thus, there is no reasonable doubt to resolve in the Veteran's favor, and the appeal must be denied.

M. M. Celli

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Webb, Katherine
appeal, there was no pre-decisional duty to assist error, and remand on such basis is not warranted.

M. M. Celli

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Webb, Katherine S.

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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