Case A26040998

Summary

The Veteran served on active duty from October 2001 to February 2009. The Veteran appealed the March 2021 rating decision concerning service connection for sleep apnea and a back condition, and a remand for a left shoulder condition. The appeal for sleep apnea was dismissed as withdrawn by the Veteran. Regarding the back condition, the Board found that while the Veteran has a current back condition, the evidence persuasively weighed against its service connection. Service treatment records were negative for any back complaints, and post-service records showed only non-specific neck pain and degenerative changes without a clear link to service. The Board found the Veteran's lay testimony regarding the back condition to be conclusory and insufficient to establish a nexus or trigger a duty to provide a VA examination. The Board concluded the negative evidence was more persuasive, rendering the benefit of the doubt rule inapplicable, and thus denied service connection for the back condition. The claim for a left shoulder condition was remanded. The Veteran reported left shoulder pain starting in 2006, with post-service records documenting tendinosis and arthrosis. However, no in-service complaints or treatments were noted, and no VA examination was provided to assess the etiology. The Board found a pre-decisional duty to assist error and remanded the issue for a VA examination to determine the nature and etiology of the left shoulder condition, specifically asking the examiner to opine on the likelihood of service connection.

Full Decision Text

Citation Nr: A26040998
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 211011-190354
DATE: April 30, 2026

ORDER

Entitlement to service connection for sleep apnea is dismissed.

Entitlement to service connection for a back condition is denied.

REMANDED

Entitlement to service connection for a left shoulder condition is remanded.

FINDINGS OF FACT

1. On May 28, 2025, and July 24, 2025, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notifications from the Veteran and his representative that a withdrawal of his appeal regarding the issue of service connection for sleep apnea, filed on October 11, 2021, was requested.

2. The evidence of record persuasively weighs against finding that the Veteran's back condition had its onset during service and is not otherwise causally related to an in-service injury or disease. 

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the issue of entitlement to service connection for sleep apnea by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205. 

2. The criteria for entitlement to service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2001 to February 2009. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was scheduled for June 2025. He subsequently canceled his hearing request in May 2025. Therefore, the Board may only consider the evidence of record at the time of the March 2021 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the cancellation request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal 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.

1. Entitlement to service connection for sleep apnea

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 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 the Veteran or by his authorized representative. Id. 

In written statements dated May 2025 and July 2025, the Veteran, through his representative, explicitly and unambiguously withdrew his appeal on the issue of entitlement to service connection for sleep apnea. See May 2025 and July 2025 Correspondence. The appellant has therefore sufficiently identified the appeal that he wants dismissed. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, as the Board has no further jurisdiction to review an appeal on this issue, the appeal for entitlement to service connection for sleep apnea is dismissed.

2. Entitlement to service connection for a back condition

The Veteran seeks entitlement to service connection for a back condition. See August 2020 Fully Developed Claim. 

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, 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 (Fed. Cir. 2004).

VA must provide a medical examination when there is (1) competent evidence of a current
0 Fully Developed Claim. 

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, 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 (Fed. Cir. 2004).

VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

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

The Board concludes that, while the Veteran has a current back condition, the evidence of record persuasively weighs against finding that the Veteran's back condition began during service or is otherwise related to an in-service injury, event, or disease.

The Veteran's service treatment records do not contain any complaints, treatment, or diagnosis for any back condition. Post-service treatment records reveal complaints of neck pain on and off without any known trauma. See May 2019 Physician Note. A cervical MRI report from July 2019 indicates degenerative disc changes at C5-C6 and C6-C7. During a primary care visit in March 2021, the Veteran complained of back pain. 

Regarding the Veteran's cervical degenerative disc changes, arthritis is an enumerated condition under 38 C.F.R. § 3.309(a). However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology.  

The Board has considered the Veteran's statements, including that he has a current back condition that is related to his service. The Veteran is competent to provide testimony on matters he has personally experienced, including a contemporaneous diagnosis and observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. at 465, 469-70 (1994). Nevertheless, while he is competent to provide testimony regarding symptoms such as back pain, he is not competent to provide an opinion as to a diagnosis or as to the nature and etiology of his back condition. Thus, his lay opinion does not constitute competent evidence and lacks probative value. Further, there is no competent evidence in the record that demonstrates a nexus between the claimed back condition and an in-service event, injury, or disease.   

The Board also acknowledges the Veteran's contentions that the claim should be remanded so that the Veteran can be provided with an adequate medical examination. However, the Board notes that a remand for a VA examination is unnecessary. VA must provide a medical examination or opinion when the record contains, amongst other things, indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. 

Prior to the March 2021 rating decision on appeal, the evidence did not suggest any relationship between a currently diagnosed disorder and the Veteran's service. Additionally, no medical professional has suggested that the Veteran currently suffers from a back disability that was incurred in or aggravated by his active duty service. See 38
anded so that the Veteran can be provided with an adequate medical examination. However, the Board notes that a remand for a VA examination is unnecessary. VA must provide a medical examination or opinion when the record contains, amongst other things, indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. 

Prior to the March 2021 rating decision on appeal, the evidence did not suggest any relationship between a currently diagnosed disorder and the Veteran's service. Additionally, no medical professional has suggested that the Veteran currently suffers from a back disability that was incurred in or aggravated by his active duty service. See 38 C.F.R. § 3.159(c)(4)(i). The Veteran's general contention that he has a current disability that is the result of active duty service is a conclusory generalized statement, which was insufficient to trigger VA's duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Moreover, the Veteran's testimony regarding back condition beginning in service was added to the record after the March 2021 rating decision on appeal; thus, there is no pre-decisional error in no examination being provided to the Veteran.

In light of the evidence of record, including service treatment records, post-service medical evidence, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the Board finds that the evidence is not in approximate balance and is persuasively against the Veteran's claim; thus, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776. Therefore, entitlement to service connection for a back condition must be denied.

REASONS FOR REMAND

1. Entitlement to service connection for left shoulder condition is remanded.

The Veteran contends that he has a left shoulder condition that is related to service. See August 2020 Fully Developed Claim. 

The Veteran's service treatment records do not contain complaints, symptoms, or treatments for a left shoulder condition. However, post-service treatment records document complaints of pain in the left shoulder that the Veteran reported started in 2006 and has worsened. See July 2019 Post-Service Treatment Records. A July 2019 MRI report of the left shoulder documents an impression of rotator cuff tendinosis and degenerative arthrosis of the acromioclavicular (AC) joint. During a private medical evaluation, the Veteran reported pain located deep in the area of the scapula bilaterally. He has had numbness and tingling down both arms into the thumb, pointer, and long fingers intermittently for the last year or so. See October 2019 Private Medical Record. 

However, the Veteran has not been afforded a VA examination or opinion as to the nature and etiology of his left shoulder condition. As the evidence suggests that the Veteran's left shoulder condition may be related to service, a remand is necessary to obtain such opinion to correct a pre-decisional duty to assist error. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).

This matter is REMANDED for the following action:

Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his left shoulder condition. The claims file, including a copy of this?Remand, must be made available to the examiner for review, and the report must state that a review of the file has been conducted. 

The examiner is asked to provide an opinion as to 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 claimed left shoulder condition had its onset during his active service or was otherwise related to an in-service injury, event, or disease.

The examiner is requested to provide an opinion by carefully considering and discussing all relevant evidence in the claims file. This includes the Veteran's statements regarding the onset of his left shoulder symptoms and the Veteran's military occupational specialty. 

In considering any lay statements of record, the clinician should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation.

A complete rationale must be provided for all opinions rendered, with reference to medical principles and evidence within the claims file as necessary.