UNDIAGNOSED ILLNESSES

JIMMY L. BARDIN · 2026 · Case ID: A26040564

MIXED

Summary

The veteran, who served from September 1998 to September 2012, including service in Afghanistan and Kuwait during the Persian Gulf War, appeals the denial of service connection for an infectious disease (claimed as immunity problems) and the grant of service connection for obstructive sleep apnea (OSA). The Board denied the infectious disease claim, finding no current diagnosis or symptoms attributable to an infectious disease, despite the veteran's assertion of immunity problems and the AOJ's concession of toxic exposure risk activity (TERA) during service. The Board found the evidence persuasively weighed against the claim, rendering the benefit-of-the-doubt doctrine inapplicable. For OSA, the Board granted service connection, finding competent and credible evidence of in-service symptoms consistent with OSA, including complaints of sleep trouble, snoring, and daytime sleepiness documented in service treatment records and a sleep study. The Board found the negative nexus opinions from VA examiners inadequate due to insufficient rationale and afforded them no probative value. Resolving all reasonable doubts in the veteran's favor, service connection for OSA was granted. The claim for a stomach disability, including gastritis and GERD, was remanded. The Board found the VA examination for gastritis and GERD inadequate because the examiner failed to provide a detailed rationale linking the condition to in-service complaints and post-service symptoms. The matter was remanded for an adequate examination to determine the etiology and relationship to service.

Rationale

No current diagnosis of infectious disease; No symptoms attributable to infectious disease; Evidence persuasively weighs against claim

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250222-524145

Full Decision Text

Citation Nr: A26040564
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250222-524145
DATE: April 30, 2026

ORDER

Entitlement to service connection for an infectious disease disability (claimed as immunity problems) is denied.

Entitlement to service connection for obstructive sleep apnea (OSA) is granted.

REMANDED

Entitlement to service connection for a stomach disability to include gastritis and gastroesophageal reflux disease (GERD) is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran has had an infectious disease disability (claimed as immunity problems) at any time during or approximate to the pendency of the claim.

2. The Veteran's OSA had its onset during his active duty service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for an infectious disease disability (claimed as immunity problems) have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

2. The criteria for entitlement to service connection for OSA are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1998 to September 2012.

The rating decision on appeal was issued in February 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applied.

In the February 22, 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the February 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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 claim[s], 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 claim of entitlement to service connection for gastritis and GERD, 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

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

1. Entitlement to service connection for an infectious disease (claimed as immunity problems).

The Veteran asserts that he has immunity problems due to toxic exposure while serving in Afghanistan and Kuwait during the Persian Gulf War. See October 2022 Claim.

In the February 2023 rating decision, the AOJ conceded the Veteran' participation in a toxic exposure risk activity (TERA) while serving in Afghanistan and Kuwait, and thus a qualifying event, injury, or disease had its onset during service.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

In that regard, although the Veteran asserts that he has an immunity problem, the medical evidence of record indicates that he has not been diagnosed with any infectious disease. See Infectious Disease Disability Benefits Questionnaire (DBQ). The Veteran's VA treatment records do not reveal a diagnosis or any symptoms attributable to any infectious disease. There being no medical evidence to the contrary, the Board finds that the Veteran does not have a current diagnosis of an infectious disease and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, the first element of the service connection claim has not been satisfied.

In the absence of proof of a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for an immunity problem is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The appeal is denied.

2. Entitlement to service connection for OSA

The Veteran asserts that service connection for OSA is warranted. See September 2022 Claim.

The Veteran's service treatment records include the Veteran's complaints of frequent trouble sleeping. See September 2003 Report of Medical History; see also July 31, 2012 Report of Medical History. In addition, the Veteran underwent several sleep studies while in service, and the symptoms of snoring, excessive daytime sleepiness, insomnia, headaches, irregular sleep/wake time were reported. See August 24, 2012 Sleep Study Report. The clinician noted that the Veteran "appears to have sleep apnea of the upper airways resistance type. Due to his poor sleep efficiency and frequent awakenings, this was unable to be determined based on the poor sleep efficiency of this study." Id.

The Veteran is diagnosed with OSA. See February 2025 OSA DBQ.

Therefore, the key inquiry is whether the Veteran's OSA is related to his service.

In this instance, there is competent and credible evidence establishing the presence of symptoms consistent with OSA in service. Years later, nearly identical symptoms were documented by medical providers. See November 2023 Sleep Medicine Consult.

In that regard, the Court reasoned in Maples v. Wilkie, No. 18-2016, 2019 U.S. App. Vet. Claims LEXIS 199 (Feb. 11, 2019) (mem dec) (Falvey, J.), that sleep apnea is the type of disability for which lay evidence can be sufficient to establish service connection. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). In light of the competent medical evidence establishing the presence of symptoms consistent with OSA in service and the Veteran's competent and credible account of the inception and the ongoing nature of OSA symptoms, the Board finds that service connection on a direct basis is warranted. To the extent that the grant of service connection for the Veteran's OSA is based primarily upon lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] requires both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself". See Buchanan, 451 F. 3d 1331 (Fed. Cir. 2006).

The Board acknowledges the negative nexus opinions provided by VA examiners in November 2022 and February 2025. However, the negative nexus opinions are not supported by sufficient rationale, rendering the opinions inadequate and are afforded no probative value.

Accordingly, resolving all reasonable doubts in the Veteran's favor, the Board finds that service connection for OSA is warranted. 38 U.S
primarily upon lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] requires both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself". See Buchanan, 451 F. 3d 1331 (Fed. Cir. 2006).

Accordingly, resolving all reasonable doubts in the Veteran's favor, the Board finds that service connection for OSA is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. The appeal is granted.

REASONS FOR REMAND

1. Entitlement to service connection a stomach disability to include gastritis and GERD.

The Veteran asserts that he experienced stomach problems including symptoms of gastritis and GERD, since service in the Persian Gulf. See October 2022 Claim.

The Veteran's service treatment records document his complaints of stomach pain and difficulty keeping food down. See September 2003 Service Treatment Record.

Post-service, the Veteran's VA treatment records document the Veteran had an upper GI endoscopy for a suspected gastrointestinal bleeding with unexplained iron deficiency anemia. See September 4, 2020 VA Treatment Record. The report showed diffuse moderate inflammation characterized by erosions and friability in the stomach. Id. The Veteran was diagnosed with gastritis, unspecified without bleeding; other specified disease of esophagus; iron deficiency anemia, unspecified. Id.

The Veteran is diagnosed with gastritis and GERD. See Esophageal Conditions DBQ.

As to direct service connection, the February 2025 VA gastritis and GERD examination is inadequate for review because the opinion failed to provide a sufficiently detailed rationale to determine the post-service event to which the examiner attributes the Veteran's gastritis and GERD. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Additionally, the examiner failed to address the Veteran's service treatment record documenting his stomach pain complaints and his post-service symptoms.

The Board previously remanded this issue in a January 2025 decision. Although further delay is regrettable, the inadequate VA medical examinations constitute a duty to assist error that existed at the time of the AOJ's February 2025 rating decision and this matter therefore must be remanded to obtain an adequate VA examination.

The matter is REMANDED for the following action:

Schedule the Veteran for VA examinations with an appropriate clinician to determine the nature and etiology of the Veteran's gastritis and GERD.

The clinician must address the following:

(A) The examiner must determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current diagnosis of gastritis and GERD is related to or a continuation of his in-service complaints of stomach pain and trouble keeping food down. See September 2003 Service Treatment Record.

The examiner should consider the STRs evidencing complaints of stomach issues and post service treatments for GERD and gastritis. The examiner must explain why GERD and gastritis would or would not be a continuation of the Veteran's stomach problems in service based on medical principles.

The clinician is asked to explain the reasons behind any opinions expressed and conclusions reached. The clinician is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination.

JIMMY L. BARDIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Smith, S. L.

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