Case A26040392

H.M. WALKER · 2026 · Case ID: A26040392

MIXED

Summary

The Veteran served in the Army from July 2009 to January 2011, including service in Iraq and Kuwait during the Persian Gulf War era, earning the Iraq Campaign Medal and Global War on Terrorism Service Medal, and was designated as a gunner. The Veteran appeals the denial of service connection for breathing issues, bilateral hearing loss, GERD, a low back disability, and sleep apnea. The issues of breathing issues and bilateral hearing loss were withdrawn by the Veteran at the Board hearing and are therefore dismissed. Service connection for GERD was previously granted by the RO effective December 1, 2020, and the Board upholds this grant, finding the RO's favorable finding binding. For the low back disability, the Board applied the combat presumption, finding the Veteran's lay statements credible and consistent with his combat service as a gunner carrying heavy equipment. Despite a VA examiner's opinion finding no link to service, the Board found the evidence sufficient to rebut the negative opinion and grant service connection, resolving doubt in the Veteran's favor. Service connection for sleep apnea was denied, as the Veteran's claims were not supported by medical evidence or the VA examination, and the Board found the persuasive evidence against the claim.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210817-179901

Full Decision Text

Citation Nr: A26040392
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210817-179901
DATE: April 29, 2026

ORDER

Entitlement to service connection for a breathing issue is dismissed.

Entitlement to service connection for bilateral hearing loss is dismissed.

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

Entitlement to service connection for a low back disability (claimed as disc protrusion at L5-S1) is granted.

Entitlement to service connection for sleep apnea is denied.

FINDINGS OF FACT

1. At the May 2025 Board hearing, prior to promulgation of a decision in the appeal, the Veteran requested withdrawal of his appeal with respect to entitlement to service connection for breathing issues.

2. At the May 2025 Board hearing, prior to promulgation of a decision in the appeal, the Veteran requested withdrawal of his appeal with respect to entitlement to service connection for bilateral hearing loss.

3. The Veteran's GERD is related to active duty.

4. Resolving reasonable doubt in favor of the Veteran, his low back disability is etiologically related to service.

5. The persuasive evidence is against finding that the Veteran has a disorder characterized as sleep apnea, due to an event, injury, or disease in service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of entitlement to service connection for breathing issues, by the Veteran, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of entitlement to service connection for bilateral hearing loss, by the Veteran, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served from July 2009 to September 2009, and from January 2010 to January 2011, followed by Reserve duty. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the August 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 12, 2025.

Therefore, the Board may only consider the evidence of record at the time of the March 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, 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, 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.

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,
20.302(a), 20.801.

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, 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).

For Veterans who served in the Southwest Asia theater of operations during the Persian Gulf Era, service connection on a presumptive basis may be established for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 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).

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are considered competent to report objective signs of illness. Id.

Objective indications of a 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 an undiagnosed illness or a medically unexplained chronic multi symptom illness include, but are not limited to, the following: (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).

A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), and any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38C.F.R. § 3.317 (a
of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), and any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38C.F.R. § 3.317 (a)(2)(ii).

Personnel records detail his service in Iraq and Kuwait in 2010. Accordingly the Board finds that the Veteran had the requisite service in Southwest Asia during the Persian Gulf War era under 38 U.S.C. § 1117.

As relevant here, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act, was enacted on August 10, 2022. This new law expands VA health care and benefits for veterans exposed to burn pits or other toxic substances during military service. Under the PACT Act, "a disease specified in subsection (b) becoming manifest in a covered veteran shall be considered to have been incurred in or aggravated during active military, naval, air, or space service, notwithstanding that there is no record of evidence of such disease during the period of such service." See PACT Act Sec. 406.

A "covered veteran" means any veteran who on or after August 2, 1990, performed active military, naval, air, or space service while assigned to a duty station in Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, or United Arab Emirates; or on or after September 11, 2001, performed active military, naval, air, or space service while assigned to a duty station in Afghanistan, Djibouti, Egypt, Jordan, Lebanon, Syria, Yemen, Uzbekistan, or any other country determined relevant by the Secretary.

The PACT Act lists several diseases or illnesses that can be considered presumptively service-connected if a veteran was exposed to burn pits or other toxic substances during the Vietnam, Gulf War, and post 9/11 eras. Veterans who were exposed to burn pits or toxic substances specifically during the Gulf War and post 9/11 eras are eligible for presumptive service connection if they have a current disability diagnosed as brain cancer, glioblastoma, respiratory cancer of any type, gastrointestinal cancer of any type, head cancer of any type, lymphoma of any type, lymphatic cancer of any type, neck cancer, pancreatic cancer, reproductive cancer of any type, kidney cancer, melanoma, asthma (diagnosed after service), chronic rhinitis, chronic sinusitis, constrictive bronchiolitis or obliterative bronchiolitis, emphysema, granulomatous disease, interstitial lung disease (ILD), pleuritis, pulmonary fibrosis, sarcoidosis, chronic bronchitis, and chronic obstructive pulmonary disease (COPD). See PACT Act, Pub. L. No. 117-168 § 3373, 136 Stat. 1759 (2022).

Again, personnel records detail his service in Iraq and Kuwait, therefore, the Veteran is presumed to have been exposed to toxins pursuant to the newly enacted PACT Act requirements.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

1. Entitlement to service connection for breathing issues/shortness of breath.

2. Entitlement to service connection for bilateral hearing loss.

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.
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.

On May 12, 2025, the Veteran, along with his authorized representative withdrew the issues of entitlement to service connection for bilateral hearing loss, and service connection for breathing issues at the Board hearing. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and it is dismissed.

3. Service connection for GERD.

The Veteran filed for service connection for GERD on December 1, 2020.

In a March 2021 AOJ decision, service connection was denied. Subsequently, the Veteran submitted a request for higher level review. In a June 2021, rating decision entitlement to service connection for GERD was again denied.

In August 2021, the Veteran submitted a notice of disagreement, which is presently before the Board.

Subsequently on May 23, 2024, the Veteran filed another claim for service connection for GERD.

In a September 2024, rating decision entitlement to service connection for GERD was granted effective May 23, 2024, the date of the newly submitted claim for service connection.

Although the RO granted service connection for GERD effective May 23, 2024, the issue of entitlement to service connection for GERD has remained on appeal, since the date of claim, December 1, 2020.

In February 2021 the Veteran underwent an examination and was diagnosed with GERD. The examiner concluded GERD is less likely than not a disability pattern or diagnosed disease related to a specific exposure event experienced during service in Southwest Asia. The examiner explained there is insufficient evidence to establish a link between GERD and exposures.

In the September 2024 rating decision, service connection for GERD was granted, citing to evidence which the Board cannot consider. The Board notes the medical analysis, and records reviewed by the RO, are outside of an evidentiary window for the claim currently on appeal and so cannot be considered.

However, the September 2024 rating decision is not evidence, but a legal determination made by the AOJ. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). As such, regardless of the timing of the decision, the Board may view the AOJ rating decision as a legal determination.

The September 2024 decision granted GERD, finding that the Veteran meets all the requirements for service connection. The Board is bound by AOJ favorable findings, and so will not now deny service connection when the AOJ has found that all criteria have been met. 38 C.F.R. § 20.801(a).

Thus, for the Veteran's clarity, to protect his previously granted compensation, and to recognize the legal determination already made by the AOJ, the Board grants the Veteran's claim for service connection for GERD, effective December 1, 2020.

4. Entitlement to service connection for a low back disability (claimed as disc protrusion at L5-S1).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

As to claims made by combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R
38 C.F.R. § 3.303(d).

The combat presumption must be applied to two questions: (1) whether the claimed in-service injurious event occurred and (2) whether the claimed disability itself occurred while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In other words, the combat presumption relieves the veteran of having to establish that the injurious event suffered while in service led to disability following service, thereby permitting the veteran to have to show only that the injury or disease incurred in service was a chronic condition that persisted in the years following service. Id. at 999-1000.

Military personnel records detail he received the Iraq Campaign Medal, Global War on Terrorism Service Medal. He received hostile fire/imminent danger pay, and a combat zone tax exclusion. His combat specialty was gunner.

During a period of Reserve duty the Veteran reported a motor vehicle accident in March 2013. At a September 2013 visit the examining provider indicated his back pain and injury had resolved.

The Veteran claimed his back condition is related to his duties during service. In a December 2020 statement he reported experiencing degenerative and bulging discs of the spine related to carrying heavy body armor and weapons. He has further reported having to stand for long periods of time and duties in cramped spaces, while carrying heavy body armor and participating in marches.

The Veteran's chiropractor, C. H., submitted an opinion in November 2020. Mr. H. noted the Veteran is under his care for lower back pain and noted the Veteran's history of degenerative disc disease. Mr. H. opined the Veteran's disc issues are a result of the Veteran's military service.

In February 2021 the Veteran underwent an examination and was diagnosed with degenerative disc disease at L4-L5, and L5-S1. He had pain and limited motion. The examiner stated the Veteran's L5-S1 disc protrusion is a mechanical condition that is not related to exposures. The examiner opined it is less likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in SW Asia.

The Board notes the VA examiner did not appear to consider the Veteran's lay statements about the onset of his back pain in service. The examiner's rationale is an insufficient opinion, especially in light of the fact that his injuries occurred while serving in SW Asia. The record shows that the Veteran's back pain began in service and that he continued to have symptoms and treatment throughout the years.

In July 2021 a statement was received from M. C. Mr. C. reported serving alongside the Veteran in the U.S. Army and noted they have remained connected since that time. Mr. C. reported observing the Veteran suffer from back pain through the years.

At the Board hearing the Veteran reported being a gunner during service and carrying heavy body armor. He reported pain that originated during service and frequently lying on the floor after a mission to relieve the pain. He reported being in a motor vehicle accident in 2013; however, noted having back pain prior to the car accident.

The Veteran served in combat and his contentions are consistent with the circumstances, conditions and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service injuries. In addition, the medical evidence shows that the Veteran has been diagnosed with a low back disability. He reports the onset of this condition during combat service. The Board finds that he is both competent to report his pain during and since serving in combat and that his account of having pain since that time is sufficiently credible. There are no medical opinions that suggest a different etiology for his disability. Thus, the Board finds that there is insufficient evidence of record to rebut the combat presumption that his disabilities manifested during his combat service under Reeves.

In light of his in-service experiences, the credible history of pain in and since service, and
1154(b). As such, VA must presume the occurrence of the in-service injuries. In addition, the medical evidence shows that the Veteran has been diagnosed with a low back disability. He reports the onset of this condition during combat service. The Board finds that he is both competent to report his pain during and since serving in combat and that his account of having pain since that time is sufficiently credible. There are no medical opinions that suggest a different etiology for his disability. Thus, the Board finds that there is insufficient evidence of record to rebut the combat presumption that his disabilities manifested during his combat service under Reeves.

In light of his in-service experiences, the credible history of pain in and since service, and the current diagnoses, the Board finds that service connection is warranted for the Veteran's low back disability.

5. Entitlement to service connection for sleep apnea.

The Veteran has claimed sleep apnea is related to service.

In February 2021 the Veteran underwent a general medical Gulf War examination. There are no findings of sleep apnea.

VA treatment records are void for reports of sleep apnea.

At the Board hearing the Veteran reported episodes of snoring during service, and his belief that his sleep apnea began after a tour in Iraq.

Given the evidence of record, the evidence does not demonstrate the Veteran has a diagnosis of sleep apnea during or proximate to the appeal period. Therefore, service connection is not warranted.

The Board considered the Veteran's reports sleep symptoms, which he is competent to report. There is no indication of a sleep apnea condition during the period on review. The Board finds the persuasive evidence is against the Veteran's claim for service connection for sleep apnea. Although the Veteran believes he suffers symptoms related service, he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion diagnosing sleep apnea and linking symptoms to an in-service injury and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The medical evidence is more probative and more credible than the lay opinions of record. The February 2021 VA examination did not find any indication of sleep apnea. There is no indication during the period on appeal of the Veteran having sleep apnea.

As such, the Board finds that service connection for sleep apnea is not warranted. As the persuasive evidence is against the claim, the benefit of the doubt rule is not applicable. For these reasons, the claim is denied.

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Skiouris, Elena

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.

Analyze in VA Law Explorer