TUBERCULOSIS OF THE PLEURA

S. B. MAYS · 2026 · Case ID: A26039060

MIXED

Summary

The veteran, who served from August 1974 to January 1976, appeals the denial of service connection for asbestosis, mesothelioma, a respiratory condition (claimed as emphysema and asthma), hypertension, and PTSD. The Board found that for asbestosis, mesothelioma, and the respiratory condition, no new and relevant evidence had been received since prior denials, thus denying readjudication for these claims. For hypertension, the Board found new and relevant evidence, specifically the veteran's statement about exposure to lead paint and fuel while serving aboard the USS Kansas City, warranting readjudication. The claim for hypertension was remanded to the RO for an on-the-merits adjudication, considering the new theories of entitlement. For PTSD, the Board found new and relevant evidence in the form of private treatment records noting PTSD on the veteran's problem list. The Board remanded the PTSD claim to the RO for a VA examination to determine the nature and etiology of the condition, and to provide an opinion on the nexus to claimed in-service stressors.

Rationale

No new and relevant evidence submitted since prior denials.; Medical evidence consistent with previous statements and records.; Request to readjudicate denied per 38 C.F.R. §§ 3.156(d), 3.2501.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230823-371356

Full Decision Text

Citation Nr: A26039060
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 230823-371356
DATE: April 27, 2026

ORDER

New and relevant evidence has not been received to readjudicate a claim for service connection for asbestosis; entitlement to readjudication of the claim is denied.

New and relevant evidence has not been received to readjudicate a claim for service connection for mesothelioma; entitlement to readjudication of the claim is denied.

New and relevant evidence has not been received to readjudicate a claim for service connection for a respiratory condition, to include emphysema and asthma, entitlement to readjudication of the claim is denied.

As new and relevant evidence has been received, the claim of entitlement to service connection for hypertension is readjudicated.

As new and relevant evidence has been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is readjudicated.

REMANDED

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for PTSD is remanded.

FINDINGS OF FACT

1. New and relevant evidence concerning the previously denied claim for service connection for asbestosis has not been received.

2. New and relevant evidence concerning the previously denied claim for service connection for mesothelioma has not been received.

3. New and relevant evidence concerning the previously denied claim for service connection for a respiratory condition, to include emphysema and asthma, has not been received.

4. New and relevant evidence concerning the previously denied claim for service connection for hypertension has not been received.

5. The March 2020 rating decision that last denied entitlement to service connection for hypertension and PTSD is final.

6. Evidence received since the March 2020 final decision is both new and relevant to the claims of service connection for hypertension and PTSD.

CONCLUSIONS OF LAW

1. The criteria for readjudication of the claim for service connection for asbestosis are not met. 38 C.F.R. §§ 3.156, 3.2501 (2025).

2. The criteria for readjudication of the claim for service connection for mesothelioma are not met. 38 C.F.R. §§ 3.156, 3.2501 (2025).

3. The criteria for readjudication of the claim for service connection for a respiratory condition, to include emphysema and asthma, are not met. 38 C.F.R. §§ 3.156, 3.2501 (2025).

4. The March 2020 rating decision that denied entitlement to service connection for hypertension and PTSD is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R.

§ 20.1103 (2025).

5. Evidence received since the March 2020 rating decision is new and relevant, and the petition to readjudicate the claim for entitlement to service connection for hypertension is granted. 38 C.F.R. § 3.156(d) (2025).

6. Evidence received since the March 2020 rating decision is new and relevant, and the petition to readjudicate the claim for entitlement to service connection for PTSD is granted. 38 C.F.R. § 3.156(d) (2025).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant in this case, served on active duty from August 1974 to January 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2022 rating decision issued by a VA Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

In the August 2023 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the October 2022 rating decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The Board cannot consider (1) evidence submitted during the period after the October 2022 rating decision and before the VA Form 10182 was received, or (2) evidence submitted more than 90 days after the VA Form 10182 was received. 38 C.F.R.

§ 20.303.

If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in making this decision. 38 C.F.R. § 20.300
well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The Board cannot consider (1) evidence submitted during the period after the October 2022 rating decision and before the VA Form 10182 was received, or (2) evidence submitted more than 90 days after the VA Form 10182 was received. 38 C.F.R.

§ 20.303.

If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in making this decision. 38 C.F.R. § 20.300.

After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately characterized as listed on the first page of this decision. The Board notes that the Court has held that when a claimant files a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability). Therefore, in consideration of the holdings in Brokowski and the medical evidence of record, the Board has recharacterized the emphysema claim as seeking service connection for a respiratory condition, to include emphysema and asthma.

The Board acknowledges that the Veteran in the August 2023 VA Form 10182 stated that he was appealing issues of anxiety/depression, aortic valve disease, asthma, black stools, cardiac murmur systole, cervical neuropathy, COPD, erectile dysfunction, familial combined hyperlipidemia, history of prostate cancer, urinary frequency, gout, headache atypical, health maintenance examination, leg cramps nocturia, microscopic hematuria - other, left patellar tendonitis, and vitamin D deficiency, in addition to the issues addressed herein. However, as explained by the Board in a November 2025 appeal clarification letter, the only decision dated within the year prior to the August 2023 VA Form 10182 was issued in October 2022, and only denied readjudication of the previously denied claims seeking service connection for asbestosis, COPD, emphysema, left and right foot conditions, hypertension, mesothelioma, and PTSD. In a separate May 2023 VA Form 10182, the Veteran appealed the October 2022 rating decision as to the left foot and COPD issues, and that appeal was adjudicated by the Board in a September 2025 decision. Therefore, the Board in the November 2025 letter informed the Veteran that his August 2023 VA Form 10182 was being interpreted as disagreement with the October 2022 rating decision only as to the issues of asbestosis, mesothelioma, a respiratory condition (claimed as emphysema/asthma), hypertension, and PTSD. The Veteran did not respond to express disagreement with the Board's interpretation of the August 2023 VA Form 10182. Thus, Board has limited its decision herein to the issues that were listed in the November 2025 letter as being included in this appeal.

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

1. Whether new and relevant evidence has been received to readjudicate the previously denied claim of entitlement to service connection for asbestosis.

Under the AMA, to readjudicate a previously disallowed claim, new and relevant evidence must be received. 38 U.S.C. § 5108(a); 38C.F.R. §3.156(d). "New" evidence is evidence not previously part of the actual record before agency adjudicators. "Relevant" evidence is evidence that tends to prove or disprove a matter at issue. 38C.F.R. §3.2501(a)(1).

In a June 2017 rating decision, the RO denied the Veteran's service connection claim for asbestosis, finding that there was no evidence of a current disability. The Veteran was notified of the decision and did not file a timely Notice of Disagreement challenging this decision, nor did he submit new and material evidence within one year of receiving notice of the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In June 2022, the Veteran submitted a supplemental claim seeking service connection for asbestosis. This claim was denied in an October 2022 rating decision, which found that the evidence submitted was not new and relevant. The Veteran appealed the October 2022 rating decision and this appeal ensued.

The question becomes whether new and relevant evidence has been received since the June 2017 rating decision, and the Board finds that it has not.

Here, the Board has reviewed the record but finds no new and relevant evidence tending to prove or disprove that the Veteran currently has asbestosis. Moreover, the Board considered the Veteran's VA and private treatment records indicating that he has been evaluated for and is concerned that he might have an asbestos-related disability. However, this medical evidence is consistent with his previous statements and records and is not new evidence. As new and relevant evidence has not been received, the request to readjudicate the claim of service connection for asbestosis is denied. 38 C.F.R. §§ 3.156(d), 3.2501.

2. Whether new and relevant evidence has been received to readjudicate the previously denied claim of entitlement to service connection for mesothelioma.

In an August 2013 rating decision, the RO denied the Veteran's service connection claim for mesothelioma, finding that there was no evidence of a current disability. The Veteran was notified of the decision and did not file a timely Notice of Disagreement challenging this decision, nor did he submit new and material evidence within one year of receiving notice of the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In June 2022, the Veteran submitted a supplemental claim seeking service connection for mesothelioma. This claim was denied in an October 2022 rating decision, which found that the evidence submitted was not new and relevant. The Veteran appealed the October 2022 rating decision and this appeal ensued.

The question becomes whether new and relevant evidence has been received since the August 2013 rating decision, and the Board finds that it has not.

Here, the Board has reviewed the record but finds no new and relevant evidence tending to prove or disprove that the Veteran currently has mesothelioma. Moreover, the Board considered the Veteran's VA and private treatment records indicating that he has been evaluated for and is concerned that he might have an asbestos-related disability. However, this medical evidence is consistent with his previous statements and records, and is not new evidence. As new and relevant evidence has not been received, the request to readjudicate the claim of service connection for mesothelioma is denied. 38 C.F.R. §§ 3.156(d), 3.2501.

3. Whether new and relevant evidence has been received to readjudicate the previously denied claim of entitlement to service connection for a respiratory condition, to include emphysema and asthma.

In an August 2013 rating decision, the RO denied the Veteran's service connection claim for emphysema, finding that there was no evidence of a current disability. The Veteran was notified of the decision and did not file a timely Notice of Disagreement challenging this decision, nor did he submit new and material evidence within one year of receiving notice of the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In June 2022, the Veteran submitted a supplemental claim seeking service connection for mesothelioma.
to include emphysema and asthma.

The question becomes whether new and relevant evidence has been received since the August 2013 rating decision, and the Board finds that it has not.

Here, the Board has reviewed the record but finds no new and relevant evidence tending to prove or disprove that the Veteran currently has a respiratory condition other than the service-connected COPD, to include emphysema and asthma. Moreover, the Board considered the Veteran's VA and private treatment records indicating that he has been evaluated for and is concerned that he might have a respiratory disability. However, this medical evidence is consistent with his previous statements and records, and is not new evidence. Furthermore, to the extent that the Veteran's medical treatment records indicate that he has respiratory symptoms, the record reflects that these symptoms are related to and contemplated by his service-connected chronic obstructive pulmonary disorder (COPD). See September 2025 Board decision (granting service connection for COPD); October 2025 rating decision (implementing the Board's grant of service connection for COPD). As new and relevant evidence has not been received, the request to readjudicate the claim of service connection for a respiratory condition, to include emphysema and asthma, is denied. 38 C.F.R. §§ 3.156(d), 3.2501.

4. Whether new and relevant evidence has been received to readjudicate the previously denied claim of entitlement to service connection for hypertension.

In a June 2017 rating decision, the RO denied the Veteran's service connection claim for hypertension, finding that there was no event, disease, or injury in service, and that the currently diagnosed disability was not related to or caused by service. The Veteran was notified of the decision and did not file a timely Notice of Disagreement challenging this decision, nor did he submit new and material evidence within one year of receiving notice of the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In December 2019, the Veteran submitted a supplemental claim seeking service connection for hypertension. This claim was denied in a March 2020 rating decision, which found new and relevant had been received and readjudicated the previously denied claim. The RO again found that there was no event, disease, or injury in service, and that the currently diagnosed disability was not related to or caused by service. The Veteran was notified of the decision, and did not file a timely appeal of this decision, submit a supplemental claim with new and relevant evidence, or request higher level review within one year of receiving notice of the decision; therefore, the March 2020 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.2500, 20.202, 20.1103.

In June 2022, the Veteran submitted a supplemental claim seeking service connection for hypertension. This claim was denied in an October 2022 rating decision, which found that the evidence submitted was not new and relevant. The Veteran appealed the October 2022 rating decision and this appeal ensued.

The question becomes whether new and relevant evidence has been received since the March 2020 rating decision.

On review, the Veteran, in August 2023, submitted a statement indicating that he was exposed to various chemical agents, including lead paint and fuel, while aboard the USS Kansas City as a Boatswains Mate and tasked with grinding paint containing lead from the ship's surfaces and cleaning fuel tanks. The Veteran's statements are new to the record and raise a new theory of entitlement to service connection not previously raised at the time of the March 2020 rating decision. Thus, new and relevant evidence has been received, and re-adjudication of the Veteran's claim for service
October 2022 rating decision and this appeal ensued.

The question becomes whether new and relevant evidence has been received since the March 2020 rating decision.

On review, the Veteran, in August 2023, submitted a statement indicating that he was exposed to various chemical agents, including lead paint and fuel, while aboard the USS Kansas City as a Boatswains Mate and tasked with grinding paint containing lead from the ship's surfaces and cleaning fuel tanks. The Veteran's statements are new to the record and raise a new theory of entitlement to service connection not previously raised at the time of the March 2020 rating decision. Thus, new and relevant evidence has been received, and re-adjudication of the Veteran's claim for service connection for hypertension is warranted. Cf Boggs v. Peake, 520 F.3d 1330, 1336-37 (2008).

5. Whether new and relevant evidence has been received to readjudicate the previously denied claim of entitlement to service connection for PTSD.

In an August 2013 rating decision, the RO denied the Veteran's service connection claim for PTSD, finding that there was no verifiable in-service stressor, and that there was no currently diagnosed disability. The Veteran was notified of the decision and did not file a timely Notice of Disagreement challenging this decision, nor did he submit new and material evidence within one year of receiving notice of the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In an August 2016 rating decision, the RO declined to reopen the previously denied claim for service connection for PTSD, because the evidence submitted was not new and material. The Veteran was notified of the decision and did not file a timely Notice of Disagreement challenging this decision, nor did he submit new and material evidence within one year of receiving notice of the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In a June 2017 rating decision, the RO denied the Veteran's service connection claim for PTSD, finding that there was no verifiable in-service stressor, and that there was no currently diagnosed disability. The Veteran was notified of the decision and did not file a timely Notice of Disagreement challenging this decision, nor did he submit new and material evidence within one year of receiving notice of the decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103.

In December 2019, the Veteran submitted a supplemental claim seeking service connection for PTSD. This claim was denied in a March 2020 rating decision, which found new and relevant had been received and readjudicated the previously denied claim. The RO again found that there was no currently diagnosed disability. The Veteran was notified of the decision, and did not file a timely appeal of this decision, submit a supplemental claim with new and relevant evidence, or request higher level review within one year of receiving notice of the decision; therefore, the March 2020 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.2500, 20.202, 20.1103.

In June 2022, the Veteran submitted a supplemental claim seeking service connection for PTSD. This claim was denied in an October 2022 rating decision, which found that the evidence submitted was not new and relevant. The Veteran appealed the October 2022 rating decision and this appeal ensued.

The question becomes whether new and relevant evidence has been received since the March 2020 rating decision.

On review, the Veteran, in September 2022, submitted private medical treatment records from Dr. T.Y., dated October 2019, noting PTSD on the Veteran's active problem list. This evidence is both new and relevant to the claim seeking service connection for PTSD. Therefore, readjudication of the claim on the merits is warranted. 38 C.F.R. § 3.156(d).

REASONS FOR REMAND

1. Entitlement to service connection for hypertension is remanded.

A claimant has the right to one review on appeal to the Board. 38 U.S.C. § 7104(a). After finding that new and relevant evidence has been received, the Board must return the matter to the AOJ for consideration on the merits unless the claimant waives consideration by the AOJ, or the Board determines that the claimant
PTSD on the Veteran's active problem list. This evidence is both new and relevant to the claim seeking service connection for PTSD. Therefore, readjudication of the claim on the merits is warranted. 38 C.F.R. § 3.156(d).

REASONS FOR REMAND

1. Entitlement to service connection for hypertension is remanded.

A claimant has the right to one review on appeal to the Board. 38 U.S.C. § 7104(a). After finding that new and relevant evidence has been received, the Board must return the matter to the AOJ for consideration on the merits unless the claimant waives consideration by the AOJ, or the Board determines that the claimant would not be prejudiced by a decision on the merits. See Hickson v. Shinseki, 23 Vet. App. 394 (2010).

The AOJ did not reach the merits of the Veteran's service-connection claim for hypertension in its October 2022 rating decision. Rather, it found that no new and relevant evidence had been received. As discussed above, the Board has identified new and relevant evidence that would entitle the Veteran to an on-the-merits adjudication but finds that a Board adjudication on the current record would be prejudicial to the Veteran. Thus, a remand is required for initial AOJ consideration of entitlement to service connection for hypertension based on all raised theories of entitlement.

The AMA limits the circumstances in which the Board must remand appeals to the AOJ for further development. Nevertheless, even under the AMA, the Board still has the duty to remand to correct any error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). Thus, a remand for initial readjudication on the merits is necessary, as the Veteran has a procedural right to have review of his appeal by the AOJ.

The AOJ is reminded that it must fulfill the requisite duties attached to an adjudication of an issue on the merits, including the duty to assist in the development of the claim as contemplated by the discussion in Hickson.

2. Entitlement to service connection for PTSD is remanded.

The Veteran contends that he currently has PTSD that is related to his military service. He submitted a statement regarding claimed in-service stressors in June 2013, and in September 2022 he submitted an October 2019 private medical treatment record from Dr. T.Y., dated October 2019, that noted PTSD on the Veteran's active problem list. To date, VA has not obtained a competent medical examination and opinion addressing this claim, which is a pre-decisional duty to assist error. Accordingly, remand is warranted to obtain a VA examination prior to further adjudication. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The matters are REMANDED for the following action:

1. Adjudicate the Veteran's claim for service connection for hypertension on the merits. Consideration must be given to the new and relevant evidence described above, including the Veteran's statement contending that his diagnosed hypertension is due to exposures associated with his duties as a Boatswains Mate aboard the USS Kansas city, including grinding paint containing lead from the ship's surfaces and cleaning fuel tanks

2. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed PTSD. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail.

After examination of the Veteran and review of the claims file, the examiner should:

a. Determine whether the Veteran has had a current diagnosis of PTSD per DSM-5 diagnostic criteria during the pendency of this appeal.

(Continued on the next page)

b. If so, provide an opinion as to whether the diagnosed PTSD is at least as likely as not related to or caused by his reported in-service stressors, including the stressors described by the Veteran in his July 2013 statement.

A detailed rationale should be provided for the opinion(s) rendered.

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Thomas, 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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