SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

DAVID H. ROBERTSON · 2026 · Case ID: A26039710

MIXED

Summary

The Veteran, who served from November 1989 to November 1993, including service in Saudi Arabia from January 1991 to May 1991, appeals the denial of service connection for sleep apnea, hypertension, and vertigo, while seeking presumptive service connection for allergic rhinitis. The Board denied sleep apnea, finding the VA examiner's opinion that it was less likely than not related to service to be the most probative evidence. The Veteran's lay statements and private opinion were discounted due to lack of medical etiology and internal inconsistencies. For hypertension, the Board denied direct service connection, noting the diagnosis occurred 15 years post-service with no continuity of symptoms and a family history contributing to the condition. Presumptive service connection for hypertension under Gulf War presumptions was also denied due to a clear pathophysiology and lack of qualifying chronic disability. Similarly, vertigo was denied direct service connection due to lack of in-service complaints, a normal separation examination, and a diagnosis 25 years post-service. The Board found the Veteran's testimony regarding vertigo inconsistent with service records. However, service connection for allergic rhinitis was granted on a presumptive basis under the PACT Act, due to the Veteran's qualifying Persian Gulf service and the presumption for allergic rhinitis associated with fine particulate matter exposure. Direct service connection for allergic rhinitis was denied due to a diagnosis 10 years post-service and lack of in-service complaints or nexus.

Rationale

VA examiner opinion found less likely than not related to service; Veteran's lay statements and private opinion lacked competent medical etiology; In-service wheezing attributed to asthma, not sleep apnea

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201210-126589

Full Decision Text

Citation Nr: A26039710
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 201210-126589
DATE: April 28, 2026

ORDER

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for vertigo is denied.

Service connection for allergic rhinitis is granted. This issue is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).

FINDINGS OF FACT

1. The most probative evidence of record does not show that the Veteran's sleep apnea was related to any injury, disease, or event incurred in service; the theory of secondary service connection was raised after the rating decision on appeal.

2. The Veteran's hypertension did not begin in service or shortly after service, there was no continuity of symptomatology, the disorder is not a qualifying disability under 38 C.F.R. § 3.317 and is otherwise not related to his service.

3. The Veteran's vertigo did not begin in service or shortly after service, there was no continuity of symptomatology, the disorder is not a qualifying disability under 38 C.F.R. § 3.317 and is otherwise not related to his service.

4. The Veteran has a diagnosis of allergic rhinitis, and is presumed to have been exposed to fine, particular matter during his service in the Southwest Asia theater of operations during the Persian Gulf War era; the evidence does not support a finding that the Veteran's allergic rhinitis is directly related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for hypertension have not been met. 38 U.S.C. § §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317.

3. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317

4. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. § §§ 1110, 1117, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.320.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1989 to November 1993.

The rating decision on appeal was issued in November 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In July 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a June 2019 decision. In November 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior June 2019 decision. Therefore, the Board may only consider the evidence of record at the time of the June 2019 decision and any evidence submitted during an applicable evidentiary window.

In the December 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on July 16, 2024.

Therefore, the Board may only consider the evidence of record at the time of the June 2019 AOJ decision, which was subsequently subject to higher-level review, 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 AOJ issued the decision, which was subsequently subject to higher-level review 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.
the Board may only consider the evidence of record at the time of the June 2019 AOJ decision, which was subsequently subject to higher-level review, 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 AOJ issued the decision, which was subsequently subject to higher-level review 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.

At the outset, the Board notes that the November 2020 rating decision on appeal made a favorable finding that the evidence shows the Veteran performed service in Southwest Asia. Specifically, he served in Saudi Arabia from January 1991 to May 1991. Favorable findings made by the AOJ are binding on the Board unless rebutted by evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c). Therefore, the Board will concede service in Southwest Asia and find that the Veteran is a Persian Gulf Veteran.

Service Connection

Generally, 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).

Certain chronic diseases, such as cardiovascular renal disease, including hypertension, and organic diseases of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Service connection may also be established when the evidence shows that a Veteran had a chronic condition in service or during the applicable presumptive period. 38 C.F.R. § 3.303(b). Such conditions may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § § §3.303(b), 3.309; Walker, 708 F.3d 1331. Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

Finally, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2021. 38 U.S.C. § 1117; 38 C.F.R. §
1331. Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

Finally, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Unlike service connection on a direct basis, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not require a competent medical nexus of a link between the qualifying chronic disability and military service. Where the criteria are met, service connection is presumed unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.317(c); Gutierrez v. Principi, 19 Vet. App. 1 (2004).

The term "Persian Gulf Veteran" means a veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; and (B) a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; and (3) functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i).

A MUCMI is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. The elements of a MUCMI are as follows: (1) a diagnosed illness; (2) without conclusive pathophysiology or without conclusive etiology; (3) that is characterized by overlapping symptoms and signs; and (4) has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 U.S.C. § 1117(a)(2)(B); 38 C.F.R. § 3.317(a)(2)(i)(B). The second element - without conclusive etiology or without conclusive pathophysiology - is met "if either the etiology or the pathophysiology of the illness is inconclusive." See Stewart v. Wilkie, 30 Vet. App. 383, 392 (2018) (emphasis in original). As to the second element, whether a specific veteran's claimed condition has a conclusive pathophysiology or etiology must be based on a case-specific medical opinion. Id. at 390.

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b).

For the purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more or that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured
4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b).

In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board will afford the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

Entitlement to service connection for sleep apnea

A July 1993 Screening of Note of Acute Medical Care highlights that the Veteran was seen for wheezing. Specifically, he complained of nighttime wheezing for the past three days, but he stated that he did not have asthma. He was given Primatene Mist for his symptoms, but an examination was normal.

On his August 1993 separation Report of Medical History, the Veteran checked "no" for "frequent trouble sleeping" and "shortness of breath."

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in March 2019 for sleep apnea but did not indicate how the disability was related to service.

The Veteran received a VA examination in May 2019 and the examiner noted a diagnosis of obstructive sleep apnea from June 2017. The Veteran reported increased snoring and awakening with a sensation of gasping for breath. Based on the results of the examination, the examiner concluded that the Veteran's condition was less likely as not related to service. Service treatment records did not reflect a diagnosis or symptoms of sleep apnea. The breathing issues documented during service were related to his service-connected asthma and were not indicative of sleep apnea. Furthermore, the separation examination did not note sleep concerns.

At the July 2024 Board hearing, the Veteran's representative highlighted a service treatment record from July 1993 that showed complaints of nighttime wheezing and shortness of breath. However, the Veteran testified that he first noticed such symptoms as early as 1990. He even had to get a room by himself during service because he snored so loudly. The Veteran's wife also testified that she first noticed the Veteran snoring and waking in the middle of the night gasping for air when he returned from deployment. Finally, the Veteran's representative raised a secondary service connection claim, highlighting that medical literature found that asthma inhalers could cause or aggravate sleep apnea, as well as there being a relationship between sleep apnea and posttraumatic stress disorder (PTSD).

The Veteran submitted a private nexus statement in October 2024, within an applicable evidentiary window, which found that sleep apnea was at least as likely as not caused by or a result of service. The physician found that the Veteran noted symptoms of the condition developed while he was deployed.

The Veteran also submitted a statement in October 2024, within an applicable evidentiary window, highlighting that he was seeking direct service connection and secondary service connection as related to asthma and asthma medications. He recounted trouble sleeping during his deployment in January 1991, noting that it was sometimes difficult to breathe but he believed it was due to his asthma. However, his roommate would complain about his snoring and eventually he had to get a room by himself.

At the outset, the Board notes that only pre-decisional duty to assist errors, including those related to VA examinations, are eligible for remand under the AMA. Thus, the Board is prohibited from considering evidence obtained after the November 2020 rating decision on appeal to determine
also submitted a statement in October 2024, within an applicable evidentiary window, highlighting that he was seeking direct service connection and secondary service connection as related to asthma and asthma medications. He recounted trouble sleeping during his deployment in January 1991, noting that it was sometimes difficult to breathe but he believed it was due to his asthma. However, his roommate would complain about his snoring and eventually he had to get a room by himself.

Furthermore, the Veteran's own statements relating his sleep apnea to service are not competent evidence, as he is a layperson and lacks the training to provide an adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether his sleep apnea is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Also, sleep apnea is a disease of the respiratory system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation.

Finally, the Board finds October 2024 private to be of diminished probative value, as the physician did not support his positive opinion with a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Rather, he merely reiterated the Veteran's lay statements that his symptoms began during service.

The Board, however, finds the available VA examination to be the most probative evidence of record and concludes that service connection for sleep apnea is not warranted. The May 2019 VA examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's sleep apnea and its lack of connection to service. The Board notes that there is no competent, credible evidence in the record to link the Veteran's sleep apnea to his time in service and that his statements alone, while probative, are not competent to link the currently diagnosed sleep apnea to service. The May 2019 VA examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by service following a thorough examination and review of medical literature. In fact, the examiner competently and credibly linked the Veteran's in-service symptoms to his service-connected asthma, not the separately diagnosed sleep apnea. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application as to this claim and entitlement to service connection for sleep apnea must be denied. Lynch, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Entitlement to service connection for hypertension

The Veteran contends that service connection is warranted for hypertension as due to in-service Gulf War exposures. See March 2019 Fully Developed Claim, VA Form 21-526EZ.

Various criteria for hypertension have been suggested, ranging from 140 systolic and 90 diastolic to as high as 200 systolic and 110 diastolic. Id. For purposes of rating the disease, VA defines the term as meaning "that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

On his August 1993 separation Report of Medical History, the Veteran checked "yes" for "high or low blood pressure," but stated he had "no significant internal changes."
and 90 diastolic to as high as 200 systolic and 110 diastolic. Id. For purposes of rating the disease, VA defines the term as meaning "that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

On his August 1993 separation Report of Medical History, the Veteran checked "yes" for "high or low blood pressure," but stated he had "no significant internal changes." His contemporaneous separation examination, however, was normal; blood pressure was 122/84 and a clinical evaluation revealed a normal heart.

The Veteran received a VA examination in May 2019 and the examiner noted a diagnosis of hypertension from September 2006 by the Veteran's primary care physician. Based on the results of the examination, the examiner concluded that the condition was less likely than not related to service. The Veteran's hypertension was diagnosed in September 2006, 15 years after separation from service. This extended time span and the development of hypertension did not support an etiology related to service. It was commonly accepted in medical literature that family history, race, and age increased the likelihood of hypertension, and the Veteran had all three. Therefore, it was less likely than not that the Veteran's hypertension was related to a specific exposure event during service.

A VA Gulf War Medical examination was also obtained in May 2019 and the examiner concluded that there were no diagnosed illnesses for which no etiology was established nor were there any symptoms or signs of an undiagnosed illness or diagnosed MUCMI. Furthermore, the Veteran did not report any additional signs and/or symptoms that may represent an "undiagnosed illness" or "diagnosed medically unexplained chronic multisymptom illness."

At the July 2024 Board hearing, the Veteran's representative provided the National Institute of Health's definition of hypertension, which is 130/80. A review of the service treatment records revealed "plenty of occasions where this Veteran had blood pressure readings that meet this picture of stage 1 hypertension." He then noted that the Veteran recorded high blood pressure on his separation examination. The Veteran's wife testified that the Veteran began taking medication for hypertension in 2006; he was hypertensive from the time he separated from service until 2006, but at that time it was so bad that his physician prescribed medication.

Initially, the Board notes that presumptive service connection for hypertension is not warranted under 38 C.F.R. § 3.303(b). Although the Veteran checked "yes" for "high or low blood pressure on his August 1993 separation Report of Medical History, objective testing during his separation examination revealed normal blood pressure. Despite the Veteran's representative relying on the National Institute of Health's definition of hypertension, there is no evidence of diastolic or systolic blood pressure that meets VA's definition in service treatment records. Service records, private medical records, and VA examinations do not show evidence of chronic manifestations in service or within one year after separation from service, nor do they show evidence of a continuity of symptomatology from service to diagnoses. Instead, the competent, credible medical evidence shows hypertension manifested at least 15 years after service in September 2006. Accordingly, service connection on a presumptive basis under 38 C.F.R. § 3.303(b) is denied.

The Board also concludes that the Veteran's hypertension is not a qualifying chronic disability under 38 C.F.R. § 3.317(a). His VA records show a diagnosis of hypertension with a clear pathophysiology. VA recognizes and compensates Gulf War veterans with qualifying chronic disabilities. The evidence shows, however, that the Veteran's hypertension does not qualify as such. The Board thus finds that the Veteran is not entitled to service connection based on service in the Gulf War because he does not have a qualifying chronic disability and his hypertension was otherwise not caused by any environmental exposure in Southwest Asia.

With regard to service connection on a direct basis, the Board finds that the evidence does not support a finding that the Veteran's disability is directly related to service. The Board finds the available VA examinations to be the most probative evidence of record and concludes that service connection for hypertension is not warranted on a direct basis. The May 2019 VA examiners' findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's hypertension and its lack of connection to service. The Board notes that there is nothing in the record to link the Veteran's hypertension to his time in service
because he does not have a qualifying chronic disability and his hypertension was otherwise not caused by any environmental exposure in Southwest Asia.

With regard to service connection on a direct basis, the Board finds that the evidence does not support a finding that the Veteran's disability is directly related to service. The Board finds the available VA examinations to be the most probative evidence of record and concludes that service connection for hypertension is not warranted on a direct basis. The May 2019 VA examiners' findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's hypertension and its lack of connection to service. The Board notes that there is nothing in the record to link the Veteran's hypertension to his time in service and that his statements alone, while probative, are not competent to link the currently diagnosed disability to service. The May 2019 VA examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by service following a thorough examination and review of medical literature.

As his hypertension manifested many years after separation from active service and is otherwise not related to service, to include his service in the Southwest Asia, the claim for service connection for hypertension is denied. Lynch, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Entitlement to service connection for vertigo

The Veteran contends that service connection is warranted for dizziness as due to in-service Gulf War exposures. See March 2019 Fully Developed Claim, VA Form 21-526EZ.

The Veteran's service treatment records are negative for vertigo symptoms. Specifically, his neurological clinical evaluation was noted as "normal" on his August 1993 separation examination, and he denied "dizziness or fainting spells" on the contemporaneous Report of Medical History

The Veteran received a VA examination in May 2019 and the examiner noted a diagnosis of benign paroxysmal positional vertigo from September 2018. However, he had no identified precipitating factors. Based on the results of the examination, the examiner concluded that the condition was less likely than not related to service. The Veteran was initially diagnosed in September 2018, but his service treatment records were silent for vertigo complaints. The diagnosis was made 25 years after separation and 27 years after service in Southwest Asia. That extended time frame did not support an etiology of a chronic disability pattern due to Southwest Asia service.

At the July 2024 Board hearing, the Veteran testified that he began presenting with symptoms of dizziness in 1991. Specifically, he would drive during service with a very low beam light and, since he wore glasses, it was stressful on his eyes. He began to get dizzy and nauseous, noting that he would have to lay down because he was unable to stand or drive.

The Veteran submitted a statement in October 2024, within an applicable evidentiary window, and stated that his vertigo began during service. He recalled being dizzy and nauseous while driving with extremely low beams during service as a way to evade enemies. He also recalled a major automobile accident in September 1991 where his car was "totaled." He called a friend to take him back to the barracks, but he did not have any broken bones. When he woke up in the morning, he was sore with a headache and dizziness. The Veteran also stated that, in March 2005, his physician told him that his vertigo was related to his allergic rhinitis. Finally, the Veteran asserted that his medications for his service-connected benign prostatic hyperplasia also caused dizziness.

Initially, the Board notes that presumptive service connection for vertigo is not warranted under 38 C.F.R. § 3.303(b). Vertigo is an organic disease of the nervous system and, thus, a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a). However, it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There are no documented complaints of vertigo-related complaints during service, and the separation examination was silent for any symptomatology. Moreover, the Board finds that the Veteran's statements and testimony of ongoing symptomatology since service are not credible as they are internally inconsistent to his reports in contemporaneous treatment records. Significantly, the Veteran expressly denied experiencing dizziness on numerous occasions during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

As such, given the lack of competent and credible lay or medical evidence showing the onset of the Veteran's current vertigo in service, within one year of discharge from service, or pertinent symptomatology since service, vertigo may not be presumed to be related to service.

Furthermore, the Board notes there is no specific contention from the Veteran that his claimed vertigo represents an undiagnosed illness or a MUCMI. The Veteran was not diagnosed with vertigo in service. The Board is aware that Persian Gulf veterans may be awarded service connection for undiagnosed illnesses or MUCMI; however, the Veteran has not reported any undiagnosed signs or symptoms related to his claim for vertigo. As such, the Board finds that the evidence does not show that the Veteran has exhibited objective indications of a qualifying chronic disability and any further discussion regarding the presumptions available to Persian Gulf Veterans under 38 U.S.C. § 3.317 are not warranted here.

With regard to service connection on a direct basis, the Board finds that the evidence does not support a finding that the Veteran's disability is directly related to service. The Board finds the available VA examinations to be the most probative evidence of record and concludes that service connection for vertigo is not warranted on a direct basis. The May 2019 VA examiners' findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's vertigo and its lack of connection to service. The Board notes that there is nothing in the record to link the Veteran's vertigo to his time in service and that his statements alone, while probative, are not competent to link the currently diagnosed disabilities to service. The May 2019 VA examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by service following a thorough examination and review of medical literature.

The Board has considered the Veteran's statements and testimony but finds that these pieces of evidence do not show that his vertigo is a qualifying chronic disability under 38 C.F.R. § 3.317 nor that his Gulf War service otherwise caused his condition. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application as to this claim and entitlement to service connection for vertigo must be denied. Lynch, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Entitlement to service connection for allergic rhinitis

The Veteran contends that service connection is warranted for allergic rhinitis as due to in-service Gulf War exposures. See March 2019 Fully Developed Claim, VA Form 21-526EZ.

A May 2019 VA examination found that the Veteran has a current diagnosis of allergic rhinitis.

Relevant to this claim, effective August 5, 2021, under 38 C.F.R. § 3.320, for veterans with qualifying service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be presumed for certain listed chronic diseases associated with exposure to fine, particulate matter, which listed diseases include rhinitis. Service connection may be presumed under 38 C.F.R. § 3.320 even though there is no evidence of a listed disease during the period of service if it becomes manifest to any degree (including noncompensable) within 10 years from the date of separation. Exposure to fine, particular matter shall be presumed under 38 C.F.R. § 3.320 for veterans with qualifying service in the Southwest Asia theater of operations during the Persian Gulf War.

The PACT Act eliminated the requirement that the chronic disease become manifest within 10
theater of operations during the Persian Gulf War, service connection may be presumed for certain listed chronic diseases associated with exposure to fine, particulate matter, which listed diseases include rhinitis. Service connection may be presumed under 38 C.F.R. § 3.320 even though there is no evidence of a listed disease during the period of service if it becomes manifest to any degree (including noncompensable) within 10 years from the date of separation. Exposure to fine, particular matter shall be presumed under 38 C.F.R. § 3.320 for veterans with qualifying service in the Southwest Asia theater of operations during the Persian Gulf War.

The PACT Act eliminated the requirement that the chronic disease become manifest within 10 years following separation and expanded it to any time following separation from a qualifying period of military service. Id.

The Veteran has a current diagnosis of allergic rhinitis, and is Persian Gulf War Veteran based on qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. Accordingly, service connection for rhinitis is granted on a presumptive basis under the PACT Act. 38 U.S.C. §§ 1119, 1120 (2022).

The Board has also considered whether service connection for allergic rhinitis can also be granted on a direct basis. The Veteran received an examination in May 2019 and the examiner found that the Veteran was initially diagnosed with the disability in November 2003. Based on the results of the examination, the examiner concluded that the condition was less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. His separation examination did not indicate any allergic rhinitis complaints and service treatment records were silent for the condition. The Veteran was not diagnosed with the condition until November 2003, 10 years after separation from service and 12 years after Southwest Asia service. The extended timeframe from service and the development of allergic rhinitis did not support an etiology and it was less likely than not that the Veteran's disability was related to a specific exposure event during service.

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The Board finds the available VA examination to be the most probative evidence of record and concludes that service connection for allergic rhinitis is not warranted on a direct basis. The May 2019 VA examiners' findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's disabilities and their lack of connection to service. The Board notes that there is nothing in the record to link the Veteran's allergic rhinitis and hypertension to his time in service and that his statements alone, while probative, are not competent to link the currently diagnosed disabilities to service. The May 2019 VA examiner was able to conclude that the Veteran's claimed conditions were less likely than not incurred in or caused by service following a thorough examination and review of medical literature. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application as to this claim and entitlement to service connection for allergic rhinitis on a direct basis must be denied. Lynch, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

David Robertson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Daniels, 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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