Case A26039974

Summary

The veteran, who served from August 2002 to August 2003 and the Coast Guard from May 2004 to April 2008, with additional Army Reserves service, appeals the denial of service connection for back pain and neck pain, and the remand of claims for Non-Hodgkin's lymphoma and an acquired psychiatric disability. The Board denied service connection for back and neck pain, finding no evidence of a current diagnosed condition or functional impairment of earning capacity. The Board noted the veteran's conclusory statements but found them insufficient to warrant a VA examination, citing lack of supporting treatment records and the complexity of the issues. The Board also considered the benefit-of-the-doubt doctrine but found the evidence weighed against the claims. For Non-Hodgkin's lymphoma, the Board remanded due to an inadequate Toxic Risk Exposure Activity (TERA) memorandum that failed to address claimed carcinogen exposure and found a submitted private nexus opinion speculative. For the acquired psychiatric disability, the Board remanded due to a duty to assist error in failing to develop treatment records from the veteran's therapist. The AOJ will prepare a new TERA memorandum, consider additional evidence for the remanded claims, and develop treatment records for the psychiatric condition.

Rationale

No evidence of current diagnosed back condition or functional impairment.; Veteran's conclusory statements insufficient for VA examination.; Lack of supporting VA or private treatment records.

Full Decision Text

Citation Nr: A26039974
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 251106-595742
DATE: April 29, 2026

ORDER

Entitlement to service connection for back pain is denied.

Entitlement to service connection for neck pain is denied.

REMANDED

Entitlement to service connection for Non-Hodgkin's lymphoma is remanded.

Entitlement to service connection for generalized anxiety disorder, also described as posttraumatic stressed disorder (PTSD) ("acquired psychiatric disability") is remanded.

FINDINGS OF FACT

1. The Veteran does not have a diagnosed back condition, or back pain reaching the level of functional impairment of earning capacity

2. The Veteran does not have a diagnosed neck condition, or neck pain reaching the level of functional impairment of earning capacity.

CONCLUSIONS OF LAW

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

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Army from August 2002 to August 2003 and in the Coast Guard from May 2004 to April 2008. He had additional service in the United States Army Reserves, to include a period of active duty for training between June 2000 and February 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2024 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ).

In the November 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the December 2024 AOJ decision, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 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.

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

Service Connection

1. Entitlement to service connection for back pain is denied.

2. Entitlement to service connection for neck pain is denied.

The Veteran contends that he suffers from back pain and neck pain which is a result of his military service.  See November 2025 NOD. Specifically, he claims service connection for lower back pain and neck pain due to ruck sack marches and while conducting surf station duties.  See March 2024 VA 21-526EZ, Fully Developed Claim.

In March 2024, the Veteran submitted a VA 21-4142 Authorization for Release of Information indicating treatment at the University of Maryland from November 2020 to February 2024. The AOJ requested such records in April 2024 and provided notice to the Veteran that it was his responsibility to see that VA received them. In May 2024, the AOJ sent the Veteran a letter indicating that University of Maryland indicated there were no medical or billing records on file for the dates requested and encouraging him to send the records himself. No records were received prior to the decision on appeal.
 to ruck sack marches and while conducting surf station duties.  See March 2024 VA 21-526EZ, Fully Developed Claim.

In March 2024, the Veteran submitted a VA 21-4142 Authorization for Release of Information indicating treatment at the University of Maryland from November 2020 to February 2024. The AOJ requested such records in April 2024 and provided notice to the Veteran that it was his responsibility to see that VA received them. In May 2024, the AOJ sent the Veteran a letter indicating that University of Maryland indicated there were no medical or billing records on file for the dates requested and encouraging him to send the records himself. No records were received prior to the decision on appeal. The Board finds no duty to assist error on the part of the AOJ in this regard.

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.  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.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. Id.

The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007).

The evidence of record before the Board does not demonstrate disability of the back or neck and 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).  The relevant VA and private treatment records of record do not contain any reference to back pain or neck pain or any other back or neck condition, nor has the Veteran identified any evidence in support of a current disability for these conditions.

The Board has also considered 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. However, the Veteran has not made any statements regarding functional impairment related to back pain or neck pain beyond the bare assertion of filing a claim for entitlement to service connection for these conditions.

The Board recognizes that the Veteran believes he suffers from back pain and neck pain and further believes that these conditions are related to his time in service, to include ruck sack marches and surf station duties.  The Board notes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. There is no definitive statement of continuous symptoms since service. The only evidence of record relating the Veteran's claimed disability to service or a service-connected disability are the Veteran's own general conclusory statements, which do
 The Board notes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. There is no definitive statement of continuous symptoms since service. The only evidence of record relating the Veteran's claimed disability to service or a service-connected disability are the Veteran's own general conclusory statements, which do not meet the low threshold of an indication that the claimed disability is due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). 

The Board further notes that the Veteran has not been afforded a VA examination in relation to his back or neck conditions.  Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when there is: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  The Board finds that a VA examination in this instance is unnecessary.  Although McLendon sets a low bar, that bar has not been met here.  The only evidence of a possible connection between the Veteran's alleged back and/or neck conditions and the Veteran's service are the Veteran's generalized, conclusory statements that these conditions are a result of his time in service.  These statements alone are not sufficient to obtain an examination or opinion, particularly in light of the lack of any VA or private treatment notes supporting the existence of these conditions.  See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertions of nexus are insufficient to entitlement a claimant to a VA medical examination). 

In short, after considering the competent evidence of record, the Board finds that the evidence persuasively weighs against a finding that the Veteran had a diagnosed back or neck condition or back pain and/or neck pain reaching the level of functional impairment of earning capacity.  Brammer, supra; McClain, supra.  As such, the Board must find that entitlement to service connection for back pain and/or neck pain is not warranted.

The Board has considered the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claims, the evidence not in approximate balance to allow a grant. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  Accordingly, the claims for entitlement to service connection for back pain and entitlement to service connection for neck pain must be denied.

REASONS FOR REMAND

Non-Hodgkin's Lymphoma

The Veteran contends that he suffers from non-hodgkin's lymphoma as a result of his military service.  See March 2024 VA Form 21-526EZ.

The Board finds that the December 2024 Toxic Risk Exposure Activity (TERA) Memorandum is inadequate as it does not include consideration of all the Veteran's hazardous exposures during service.  Specifically, there is no indication that the TERA memo addressed the Veteran's claimed exposure to "carcinogens." See March 2024 VA Form 21-526EZ, Fully Developed Claim. As such, the Board finds that there was a pre-decisional duty to assist error in the preparation of the December 2024 TERA memo.  38 C.F.R. § 20.802 (a).

While the Board acknowledges that the Veteran submitted a positive nexus opinion regarding the Veteran's cancer from Dr. A.R. in the post-10182 evidentiary window, the Board finds that this opinion is inadequate because the doctor used language, "may well have caused or contributed to [Veteran
 exposures during service.  Specifically, there is no indication that the TERA memo addressed the Veteran's claimed exposure to "carcinogens." See March 2024 VA Form 21-526EZ, Fully Developed Claim. As such, the Board finds that there was a pre-decisional duty to assist error in the preparation of the December 2024 TERA memo.  38 C.F.R. § 20.802 (a).

While the Board acknowledges that the Veteran submitted a positive nexus opinion regarding the Veteran's cancer from Dr. A.R. in the post-10182 evidentiary window, the Board finds that this opinion is inadequate because the doctor used language, "may well have caused or contributed to [Veteran's] blood cancer," that is insufficiently definitive to support a claim for service connection. See Hood v. Shinseki, 23 Vet. App. 295, 29899 (2009) (medical opinion is speculative when it uses equivocal language such as "could" or "might" without any other rationale or supporting data); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (use of term "could," without other rationale or supporting data, is speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (use of the phrase "could not rule out" was too speculative to establish medical linkage). Therefore, this provider's opinion is of little to no probative value.

Acquired Psychiatric Disability

The Veteran contends that he suffers from an acquired psychiatric disability as a result of his military service.  See March 2024 VA Form 21-526EZ.  He indicated that his therapist stated he had generalized anxiety disorder that is service-related.

The Board finds that prior to the decision on appeal there was an indication of psychiatric treatment. There is no indication in the file that the AOJ attempted to develop for treatment records from the Veteran's therapist.  This constitutes a pre-decisional duty to assist error warranting remand.

The matters are REMANDED for the following action:

1. Prepare a new TERA memorandum.  This should address the total potential exposure through all applicable active-duty deployments, to include carcinogens. 

2. Send to the Veteran the necessary forms to identify any outstanding private treatment he has received for his acquired psychiatric condition, to include from his therapist, and afford him the opportunity to complete and submit those forms.  VA also must send the Veteran forms necessary to authorize VA to obtain these records on his behalf.  If he identifies any records, make reasonable attempts to obtain them.  Such attempts must be documented in the claims file.

 

 

C.B. Iwanowski

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Hillman, 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.