POSTTRAUMATIC STRESS DISORDER (PTSD)

RAY BARTO SLABBEKORN, JR. · 2025 · Case ID: A25051926

MIXED

Summary

The veteran, who served in the Air Force from October 1980 to April 1982, appeals the denial of service connection for a neck disorder and obstructive sleep apnea, as well as special monthly compensation (SMC) for aid and attendance. The Board granted service connection for an acquired psychiatric disorder, finding it was secondary to the veteran's service-connected bilateral knee disabilities. This conclusion was based on a probative private medical opinion from August 2016, which linked the psychiatric disorder to the knee conditions and cited supporting medical literature. The Board found the private opinion highly persuasive due to its detailed rationale and lack of contradictory evidence. For the neck disorder, the Board acknowledged a current diagnosis but denied service connection due to a lack of evidence of an in-service injury, event, or disease, and noted that presumptive criteria for chronic diseases were not met. The claim for obstructive sleep apnea was denied due to insufficient evidence linking it to service-connected disabilities or medications, as the submitted medical treatises were general and not supported by a specific medical opinion. The claim for SMC aid and attendance was denied because the evidence did not demonstrate the veteran required regular aid and attendance, noting the veteran did not respond to requests for relevant information. The claim for SMC housebound status was remanded for readjudication after a rating is assigned for the newly granted psychiatric disorder.

Rationale

Favorable finding of diagnoses for anxiety disorder and insomnia from HLR decision.; Private medical opinion found psychiatric disorder more likely than not caused by knee conditions.; Nexus established between acquired psychiatric disorder and knee disabilities.

Service Branch

AIR FORCE

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND

Docket No.

220323-231548

Full Decision Text

Citation Nr: A25051926
Decision Date: 06/12/25 Archive Date: 06/12/25

DOCKET NO. 220323-231548
DATE: June 12, 2025

ORDER

Entitlement to service connection for an acquired psychiatric disorder is granted.

Entitlement to service connection for a neck disorder is denied.

Entitlement to service connection for obstructive sleep apnea is denied.

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied.

REMANDED

Entitlement to SMC based on housebound status is remanded.

FINDINGS OF FACT

1. The Veteran's acquired psychiatric disorder is caused or aggravated by his service-connected disabilities, to include his service-connected right and left knee chondromalacia and instability.

2. The evidence of record persuasively weighs against finding that a neck disorder began during service or within one year of discharge or is otherwise related to an in-service injury or disease.

3. The evidence of record persuasively weighs against finding that obstructive sleep apnea is caused or aggravated by a service-connected disability.

4. The evidence of record persuasively weighs against finding that the Veteran is in need of the regular aid and attendance of another person as a result of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.125.

2. The criteria for entitlement to service connection for a neck disorder are not met. 38 C.F.R. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for entitlement to service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for entitlement to SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.350, 3.352.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Air Force from October 1980 to April 1982.

In January 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim. He requested readjudication of his previously denied claims for service connection for a sleep disorder, depression, an anxiety disorder, and a neck disorder, as well as the claims for SMC based on the need for aid and attendance and housebound status. These claims had most recently been addressed in an unappealed March 2016 Statement of the Case (SOC). In May 2020, the Agency of Original Jurisdiction (AOJ) issued a Supplemental Claim decision. This decision found that new and relevant evidence had been received with respect to each of these claims and denied them on the merits.

The Veteran then submitted an April 2021 VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), requesting review of the May 2020 Supplemental Claim decision. In June 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2020 Supplemental Claim rating decision. This decision continued to deny the claims for service connection for insomnia, depression, anxiety, a neck disorder, and sleep apnea, as well as the claims for SMC based on the need for aid and attendance and housebound status.

In the March 23, 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, consideration may only be given to the evidence of record at the time of the May 2020 Supplemental Claim rating decision, which was subsequently subject to HLR in June 2021, as well as any evidence submitted by the Veteran or his former representative with, or within 90 days from receipt of, the VA Form 10182 (i.e., June 21, 2022). 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the May 2020 Supplemental Claim decision, which was subsequently subject to HLR in June 2021, and prior to the date the Board of Veterans' Appeals (the Board) received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182 (i.e., after June 21, 2022). the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. The period to submit additional evidence has now passed.

With respect to the claim for entitlement to service connection for an acquired psychiatric disorder, neck disorder, obstructive sleep apnea, and SMC based on the need for aid and attendance, if the Veteran would like the Department of Veterans Affairs (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, considering the new evidence in addition to the evidence previously considered. 38 C.F.R. § 3.2501. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of entitlement to SMC based on housebound status, 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 a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Service connection may also be granted for any injury or disease diagnosed after discharge when the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Service connection may also be granted on a secondary basis for a disability that is due to or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead holding "but for" causation or aggravation is enough to show entitlement to secondary service connection).

VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal 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 Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir.
. 38 C.F.R. § 4.3. When there is an approximate or nearly equal 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 Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to Service Connection for an Acquired Psychiatric Disorder

The Veteran seeks service connection for a psychiatric disorder. He has separately claimed service connection for an anxiety disorder, depression, and insomnia. As the record contains diagnoses of multiple psychiatric disorders, the Board has recharacterized the Veteran's claim as entitlement to service connection for any acquired psychiatric disorder pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran claims that his acquired psychiatric disorder is related to the pain caused by his service-connected disabilities, to include his bilateral knee disabilities.

In addition to the general requirements for service connection, diagnoses of mental disorders must conform to the DSM-V criteria. 38 C.F.R. § 4.125 (incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fifth Edition (DSM-V) for rating purposes).

The June 2021 HLR rating decision on appeal favorably found that the Veteran has diagnoses of anxiety disorder and insomnia. These favorable findings are binding on the Board. 38 C.F.R. § 3.104(c). The Veteran's VA treatment records also show that he was diagnosed with adjustment disorder with mixed anxiety and depressed mood based on the DSM-V criteria in May 2018. Finally, an August 2016 Disability Benefits Questionnaire (DBQ) noted a diagnosis of major depressive disorder, recurrent moderate. Thus, the first element of secondary service connection-a current diagnosis-is met. See 38 C.F.R. §§ 3.310, 4.125; see also Allen, 7 Vet. App. at 448; see also Spicer, 61 F.4th at 1364.

The Veteran is also service connected for left and right knee chondromalacia with degenerative joint disease, and left and right knee instability. The second element of secondary service connection is met as well. See 38 C.F.R. § 3.310; see also Allen, 7 Vet. App. at 448; see also Spicer, 61 F.4th at 1364.

Thus, the remaining question for the Board is whether the Veteran's current acquired psychiatric disorder is secondary to his service-connected right and left knee chondromalacia and instability.

In support of his claim, the Veteran submitted a DBQ and private medical opinion in August 2016. The DBQ and opinion were provided by a licensed psychologist and were based upon interview of the Veteran and review of the claims file. The examiner diagnosed the Veteran with major depressive disorder, recurrent, moderate. She further opined that the Veteran's right and left knee chondromalacia and instability more likely than not caused his major depressive disorder. In support of this opinion, she cited a body of medical literature detailing the connection between medical issues, such as those the Veteran experiences, and psychiatric disorders, similar to his major depressive disorder. She specifically cited literature showing a causal relationship between medical issues and psychiatric difficulties.

The August 2016 private medical opinion is highly probative. It is based on an accurate medical history, detailed review of the claims file, and interview with the Veteran, and it provides an explanation with clear conclusions, supporting data, and citations to medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is also no medical evidence contradicting the August 2016 private medical opinion. A nexus has been established between the Veteran's acquired psychiatric disorder and his right and left knee disabilities.

Considering the foregoing, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 C.F.R. § 3.310(a); see also Allen, 7 Vet. App. at 448; see also Spicer, 61 F.4th at 1364.

2. Entitlement to Service Connection for a Neck
provides an explanation with clear conclusions, supporting data, and citations to medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is also no medical evidence contradicting the August 2016 private medical opinion. A nexus has been established between the Veteran's acquired psychiatric disorder and his right and left knee disabilities.

2. Entitlement to Service Connection for a Neck Disorder

The June 2021 HLR rating decision on appeal favorably found that the Veteran has a diagnosis of cervicalgia. This favorable finding is binding on the Board. 38 C.F.R. § 3.104(c). The Veteran's VA treatment records also document a diagnosis of spinal stenosis of the cervical region, and private treatment records note a September 2019 diagnosis of cervical disc displacement. Thus, a current diagnosis of a neck disorder has been established, and the first element of service connection is met. Shedden, 381 F.3d at 1166-67.

However, the evidence persuasively weighs against finding that the Veteran experienced an in-service injury, event, or disease that caused his current neck disorder. The Veteran has not identified any specific injury, event, or disease during service from which service connection could possibly be established. At no point has the Veteran provided any lay statements describing incidents related to his neck disorder. While the Veteran has indicated that walking a lot causes neck pain, this does not suggest that his neck disorder is related to service. There is also no evidence of any in-service event, injury, or disease relating to the Veteran's neck disorder in his service treatment records (STRs), nor is there any mention of an in-service injury, event, or disease related to the neck in his post-service VA or private treatment records.

As there is no lay or medical evidence of an in-service injury, event, or disease that could have caused the Veteran's current neck disorder, the second element of service connection is not met. Shedden, 381 F.3d at 1166-67.

Neither a VA examination nor a VA medical opinion have been obtained regarding the Veteran's claimed neck disorder. However, the threshold criteria under McLendon v. Nicholson, 20 Vet. App. 79 (2006), for obtaining a VA examination and/or medical opinion have not been met. See 38 C.F.R. § 3.159(c)(4). The Veteran has not submitted any evidence showing an in-service injury, event, or disease that could have caused his current neck disorder. Such is required for a VA examination to be warranted. Furthermore, a conclusory generalized lay statement alleging a nexus between a current disability and service does not meet the standard to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As the McLendon criteria were not met at the time of the May 2020 Supplemental Claim decision on appeal, it was not a pre-decisional duty to assist error for the AOJ to have not obtained a VA examination or medical opinion regarding this issue. 38 C.F.R. § 20.802(a).

Finally, the Board has considered whether service connection is warranted on a presumptive basis as a chronic disease. Certain chronic diseases, such as arthritis, will be presumed to be 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. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

However, the Board notes that the record does not show a current diagnosis of arthritis of the neck. While a January 2010 letter from the Veteran's physician notes a diagnosis of osteoarthritis of the neck, this diagnosis was rendered a decade before the period on appeal began. More recent treatment records do not document a diagnosis of osteoarthritis of the neck during or approximate to the period on appeal. Rather, they only show diagnoses of cervicalgia, spinal stenosis of the cervical region, and cervical disc displacement. These disorders
, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

However, the Board notes that the record does not show a current diagnosis of arthritis of the neck. While a January 2010 letter from the Veteran's physician notes a diagnosis of osteoarthritis of the neck, this diagnosis was rendered a decade before the period on appeal began. More recent treatment records do not document a diagnosis of osteoarthritis of the neck during or approximate to the period on appeal. Rather, they only show diagnoses of cervicalgia, spinal stenosis of the cervical region, and cervical disc displacement. These disorders are not chronic diseases listed in 38 C.F.R. § 3.309(a) and therefore do not warrant presumptive service connection.

Furthermore, even if, without conceding, the Veteran does have a current diagnosis of osteoarthritis of the neck, service connection on a presumptive basis still is not warranted. Osteoarthritis of the neck was not shown as chronic in service, did not manifest to a compensable degree within one year of his separation from service, and was not noted in service with attributable continuity of symptomatology. As discussed above, the Veteran's STRs do not contain complaints of neck pain or other symptoms related to the neck. The Veteran's treatment records first document complaints of neck pain in 2009, decades after his separation from service in 1982. The Veteran has not provided lay statements or medical evidence indicating that his osteoarthritis of the neck manifested during service or within one year thereafter and has been continuous since then. In light of this, presumptive service connection for osteoarthritis of the neck is not warranted. 38 U.S.C. §§ 1110, 1112(a)(1); 38 C.F.R. §§ 3.30(a)(3), 3.309(a).

Thus, for the reasons and bases discussed, the evidence for the claim for entitlement to service connection for a neck disorder versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The claim for entitlement to service connection for a neck disorder is denied.

3. Entitlement to Service Connection for Obstructive Sleep Apnea

The Veteran seeks service connection for obstructive sleep apnea as secondary to opioid usage due to the pain caused by multiple service-connected disabilities. Alternatively, he asserts that this condition is related to his acquired psychiatric disorder, to include the antidepressants prescribed to treat this condition.

The June 2021 HLR rating decision on appeal included the favorable finding that the Veteran has a diagnosis of obstructive sleep apnea. This favorable finding is binding on the Board. 38 C.F.R. § 3.104(c). The first element of secondary service connection-a current diagnosis-is therefore met. See 38 C.F.R. §§ 3.310, 4.125; see also Allen, 7 Vet. App. at 448; see also Spicer, 61 F.4th at 1364.

The Veteran is service connected for numerous other physical disabilities, including degenerative disc disease of the lumbar spine, left and right knee chondromalacia with degenerative joint disease, left and right knee instability, status post left rotator cuff tear with degenerative arthritis, status post right rotator cuff tear with acromioclavicular joint osteoarthritis, left and right lower extremity radiculopathy, left shoulder surgical scar, and painful scar, status post lumbar fusion. The decision herein has also granted service connection for an acquired psychiatric disorder. The second element of secondary service connection is met. See 38 C.F.R. § 3.310; see also Allen, 7 Vet. App. at 448; see also Spicer, 61 F.4th at 1364.

Thus, the remaining question for the Board is whether the Veteran's current obstructive sleep apnea is secondary to either his service-connected acquired psychiatric disorder or any of his other service-connected disabilities, to include the medications used to treat these conditions.

The Board turns first to the claim that the Veteran's obstructive sleep apnea is related to the opioid usage due to the pain caused by his service-connected physical disabilities. The Board notes that the Veteran's VA treatment records indeed show that he had previously tried opioid therapy for the management of his chronic knee and low back pain. For instance, pain management treatment records from October 2017 show that he had previously been prescribed Percocet (hydrocodone/acetaminophen), which is an opioid. See National Library of Medicine, "Oxycodone" (Feb. 20, 2024), https://www.ncbi.nlm.nih.gov/books/ NBK482226/. He has since discontinued this medication.

In support of this claim, the Veteran submitted two medical articles purporting to show a link between opioid usage for chronic pain and sleep-disordered breathing. The first article, titled "Sleep-Disordered Breathing Associated With Long-term Opioid Therapy," describes three patients from the authors' clinic "in whom opioid therapy may have contributed to the pathogenesis of sleep-disordered breathing or complicated therapy." This article concluded that "[f]urther prospective studies of the effects of sustained-release opioids on respiration during sleep are urgently needed. Questions to be answered relate to the dose, duration, specific opioid, and associated comorbid factors including interaction with other medications such as benzodiazepines and antidepressants." The second article, titled "Sleep-Disordered Breathing and Chronic Opioid Therapy," concluded that "[s]leep-disordered breathing was common in chronic pain patients on opioids. The dose-response relation of sleep apnea to methadone and benzodiazepines calls for increased vigilance."

In some circumstances, medical treatise evidence can constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, both Federal regulation and case law preclude granting service connection based on speculation or mere possibility. 38 C.F.R. § 3.102; see also Utehdahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (stating that a medical treatise submitted by an appellant that only raises the possibility that there may be some relationship between sickle cell anemia and the veteran's fatal coronary artery disease does not show a direct causal relationship between the two disorders such as to entitle the appellant to service connection for the cause of the veteran's death). The United States Court of Appeals for Veterans Claims (the Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated medical opinion. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998).

Here, the treatise evidence submitted by the Veteran was not combined with or accompanied by competent medical evidence specific to the facts and medical history relevant to this Veteran. No VA or private examiner or physician has offered an opinion linking the Veteran's obstructive sleep apnea to his physical disabilities, to include the usage of opioids to treat these conditions. Thus, because the medical treatise evidence is general and speculative as to the relationship between obstructive sleep apnea and opioid use, and because the treatise evidence is not supported by competent medical evidence specific to this Veteran, the Board affords the treatise evidence little to no probative weight. This treatise evidence is not persuasive evidence as to the alleged link between the Veteran's obstructive sleep apnea and his service-connected physical disabilities, to include the opioid medications used to treat these conditions.

The Veteran has also asserted that his obstructive sleep apnea is caused by the antidepressants used to treat his service-connected acquired psychiatric disorder. His VA treatment records show that he has been prescribed antidepressants including bupropion, duloxetine, and trazodone. See National Library of Medicine, "Bupropion" (Sept. 2, 2024), https://www.ncbi.nlm.nih.gov/books/NBK470212/; see also National Library of Medicine, "Duloxetine" (May 29, 202
treatise evidence is not persuasive evidence as to the alleged link between the Veteran's obstructive sleep apnea and his service-connected physical disabilities, to include the opioid medications used to treat these conditions.

The Veteran has also asserted that his obstructive sleep apnea is caused by the antidepressants used to treat his service-connected acquired psychiatric disorder. His VA treatment records show that he has been prescribed antidepressants including bupropion, duloxetine, and trazodone. See National Library of Medicine, "Bupropion" (Sept. 2, 2024), https://www.ncbi.nlm.nih.gov/books/NBK470212/; see also National Library of Medicine, "Duloxetine" (May 29, 2023), https://www.ncbi.nlm.nih.gov/books/NBK549806/; see also National Library of Medicine, "Trazodone" (Feb. 29, 2024), https://www.ncbi.nlm.nih.gov/books/ NBK470560/. The Board notes that some of these antidepressants have been prescribed for treatment of conditions other than his acquired psychiatric disorder, as duloxetine was prescribed for musculoskeletal pain. The record demonstrates that trazodone was prescribed to treat his insomnia, which is a symptom of his acquired psychiatric disorder.

The Veteran's former attorney cited an article entitled "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort," which purportedly shows that mental health problems, along with the prescription of antidepressants, have a likelihood of the development of sleep apnea. Again, however, the Board affords this treatise evidence little to no probative value. This treatise evidence is general and speculative as to the relationship between obstructive sleep apnea and antidepressant usage, and it is again not accompanied by competent medical evidence specific to this Veteran.

Based on the foregoing, the Board finds that the record does not contain probative medical evidence establishing a causal relationship between the Veteran's obstructive sleep apnea and his service-connected disabilities. The Veteran was not afforded a VA examination pertaining to his obstructive sleep apnea, he did not submit a private medical opinion, and no other medical provider has opined on the cause of his current obstructive sleep apnea. Further, while he has submitted medical treatise evidence in support of this claim, this evidence is not persuasive because it is too general and is not accompanied by competent medical evidence specific to this Veteran and the facts of his case. Without evidence of causation or aggravation, secondary service connection cannot be established. See 38 C.F.R. § 3.310; see also Allen, 7 Vet. App. at 448; see also Spicer, 61 F.4th at 1364.

The Board has considered whether it can remand the Veteran's claim to schedule a VA examination under McLendon, 20 Vet. App. at 81. Under the Appeals Modernization Act (AMA), however, the Board can only remand to correct a duty to assist error that existed at the time of the decision on appeal. That means in this case, the Board can only remand for a VA examination if the record at the time of the May 2020 Supplemental Claim decision, which was then subject to HLR in June 2021, met the McLendon standard. 38 C.F.R. § 20.802(a). Here, however, there was no indication of a relationship between the Veteran's obstructive sleep apnea and his service-connected disabilities until after the rating decision on appeal. Although the bar to obtain a VA examination is relatively low, the Veteran did not assert that his obstructive sleep apnea was secondary to his service-connected disabilities until the brief accompanying the March 2022 VA Form 10182. As this was received after the rating decision on appeal, the McLendon criteria were not met at the time of the decision on appeal, and it was not a pre-decisional duty to assist error for the AOJ to have not obtained a VA examination or medical opinion regarding this issue. 38 C.F.R. § 20.802(a).

In sum, for the reasons and bases discussed, the evidence for the claim for entitlement to service connection for obstructive sleep apnea versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. The claim for entitlement to service connection for obstructive sleep apnea is denied.

4. Entitlement to SMC Based on the Need for Aid and Attendance

Under 38 U.S.C. § 1114(l), SMC is payable to a veteran who, as a result of service-connected disabilities,
bases discussed, the evidence for the claim for entitlement to service connection for obstructive sleep apnea versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. The claim for entitlement to service connection for obstructive sleep apnea is denied.

4. Entitlement to SMC Based on the Need for Aid and Attendance

Under 38 U.S.C. § 1114(l), SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless due to physical or mental incapacity that he requires the regular aid and attendance of another person to perform the personal functions required in everyday living. See 38 C.F.R. § 3.350(b)(3).

A veteran will be considered to be in need of regular aid and attendance if any of the following factors are met:

1. He has anatomical loss or loss of use of both feet, or one hand and one foot (See 38 U.S.C. § 1114(l));

2. He is blind or nearly so blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less (See 38 C.F.R. § 3.351(c)(1));

3. He is a patient in a nursing home because of mental or physical incapacity (See 38 C.F.R. § 3.352(c)(2));

4. He is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance (See 38 C.F.R. §§ 3.350(b), 3.352(a)); or

5. There is a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a) (See 38 C.F.R. § 3.351(c)(3)).

The following factors will be considered in determining whether there is a factual need for aid and attendance under 38 C.F.R. § 3.352(a): the inability to dress or undress without assistance, the inability to keep ordinarily clean or presentable without assistance, the inability to feed himself without assistance, the inability to tend to the wants of nature, incapacity that requires care or assistance on a regular basis to protect from the hazards or dangers incident to his daily environment, and the frequent need of adjustment of any prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.). See 38 C.F.R. § 3.352(a).

It is not required that all the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance. See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for SMC by reason of regular aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). The particular personal functions that a veteran is unable to perform should be considered in conjunction with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need.

Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well-served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350(a)(2), 4.63; Tucker v. West, 11 Vet. App. 369, 373 (1998). The determination will be made based on whether the actual remaining functions-such as, in the case of a hand, the acts of grasping or manipulation, and, in the case of a foot, the acts of balancing and propulsion-could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). Loss of use of the feet does not require a finding that a veteran has no remaining function of the feet, but instead that he has been deprived of the use of the lower extremities to such a degree that locomotion is precluded.
4.63; Tucker v. West, 11 Vet. App. 369, 373 (1998). The determination will be made based on whether the actual remaining functions-such as, in the case of a hand, the acts of grasping or manipulation, and, in the case of a foot, the acts of balancing and propulsion-could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). Loss of use of the feet does not require a finding that a veteran has no remaining function of the feet, but instead that he has been deprived of the use of the lower extremities to such a degree that locomotion is precluded. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017).

Examples that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity 3.5 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. 38 C.F.R. §§ 3.350, 4.63.

In the context of SMC based on the need for aid and attendance, "bedridden" means a condition that, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a).

Turning now to the evidence of record, at the time of the May 2020 Supplemental Claim decision, which was then subject to HLR in June 2021, the Veteran was service connected for the following disabilities: left and right knee chondromalacia, left and right knee instability, status post left rotator cuff tear with degenerative arthritis, status post right rotator cuff tear with acromioclavicular joint osteoarthritis, degenerative disc disease of the lumbar spine, and left and right lower extremity radiculopathy. The Board's decision herein also awards service connection for an acquired psychiatric disorder.

The Board notes that VA asked the Veteran to submit a completed VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, or a VA Form 21-0779, Request for Nursing Home Information in Connection with Claim for Aid and Attendance. The Veteran did not respond to this request for information.

First, the Board will consider whether the Veteran's service-connected disabilities have resulted in the anatomical loss or loss of use of both feet or one hand and one foot. Anatomical loss of both feet or of one hand and one foot is not shown. The Veteran does not argue otherwise. The Veteran has other disabilities that may affect his ability to use his lower and upper extremities, including left and right knee chondromalacia, left and right knee instability, status post left rotator cuff tear with degenerative arthritis, status post right rotator cuff tear with acromioclavicular joint osteoarthritis, and left and right lower extremity radiculopathy. However, the evidence persuasively weighs against finding that any of these disabilities have resulted in the loss of use of both feet or of one hand and one foot.

Private treatment records from September 2019 show that the Veteran sought treatment for bilateral knee pain following an accident. Upon examination, he had trace effusion with mild infrapatellar edema. His active range of motion was mildly limited secondary to pain and guarding, and he had full passive range of motion. He had tenderness at the medial and lateral joint lines. His knee was stable to varus and valgus stress at 0 and 30 degrees. His strength was rated as 4/5 at flexion and extension secondary to pain, and his sensation was intact.

These private treatment records also show that the Veteran's lumbar spine disability did not cause radicular symptoms with range of motion testing. However, he had pain with the straight leg raising test bilaterally. His lower extremity strength was rated as 5/5 bilaterally with all motions, and his deep tendon reflexes were 2+ bilaterally. His sensation to light touch was also intact in his bilateral lower extremities.

During the November 2019 peripheral nerves examination, the Veteran described numbness and tingling in his legs. He had moderate constant pain, paresthesias and/or
. His strength was rated as 4/5 at flexion and extension secondary to pain, and his sensation was intact.

During the November 2019 peripheral nerves examination, the Veteran described numbness and tingling in his legs. He had moderate constant pain, paresthesias and/or dysesthesias, and numbness of both lower extremities. He exhibited normal muscle strength at knee extension, ankle plantar flexion, and ankle dorsiflexion bilaterally. He did not have muscle atrophy. The Veteran had normal deep tendon reflexes at the knee and ankle bilaterally. He had normal sensation at the bilateral upper anterior thigh (L2) and thigh/knee (L3/4) levels, but he had decreased sensation at the lower leg/ankle (L4/L5/S1) and foot/toes (L5) bilaterally. He did not have trophic changes of the lower extremities, and his gait was normal. He was diagnosed with moderate incomplete paralysis of the bilateral sciatic nerve. The Veteran reported regular use of a back brace for his lumbar spine degenerative disc disease. The functional impact of his bilateral lower extremity radiculopathy was described as lower leg pain, tingling, numbness, and difficulty with prolonged walking for more than half a mile.

The Veteran's VA and private treatment records and VA examinations do not show that the Veteran's service-connected disabilities have amounted to the loss of use of one or both feet. The record shows that the Veteran experienced slightly decreased lower extremity strength due to his bilateral knee disabilities, as well as decreased sensation at the lower leg/ankle (L4/L5/S1) and foot/toes (L5) bilaterally. The Veteran also experienced subjective symptoms including constant pain, paresthesias and/or dysesthesias, and numbness. These symptoms caused difficulty with prolonged walking for more than half a mile. However, the evidence persuasively weighs against finding that these symptoms amount to the loss of use of one or both feet such that no effective function remains other than that which would be equally well-served by an amputation stump below the knee with use of a suitable prosthetic appliance. See Tucker, 11 Vet. App. at 373. While the Veteran reported that his lower extremity radiculopathy causes difficulty walking for more than half a mile, this does not establish that locomotion was precluded. Indeed, VA treatment records from April 2019 show that the Veteran does not need help with transportation (driving, walking, or using public transportation). The fact that the Veteran can walk for half a mile, combined with his reports of needing no help with transportation, persuasively weighs against finding that his lower extremity disabilities have precluded locomotion. See Jensen, 29 Vet. App. at 78-79. He has not provided any lay or medical evidence showing that his knee disabilities or radiculopathy have precluded locomotion.

The evidence also fails to show that the Veteran has experienced loss of use of either hand. Consideration has been given to the Veteran's bilateral shoulder disabilities. In this regard, the Veteran's September 2019 private treatment records show tenderness to palpation throughout both shoulders with slight swelling. His active range of motion was severely limited in all planes secondary to pain and guarding. His strength was rated as 4/5 and was limited by pain. He also reported that his shoulder pain worsened with overhead activity and other movements. The November 2019 VA shoulder and arms examination shows reports of shoulder pain, stiffness, limited range of motion, difficulty with heavy lifting over 25 pounds, and trouble with repetitive motion for longer than 30 minutes. Despite this pain, the evidence does not show that the Veteran's bilateral shoulder disabilities affect the use of either hand. This evidence does not demonstrate that he is unable to grasp or manipulate objects such that these tasks could be equally well-served by an amputation stump with prosthesis. The Veteran has presented no lay or medical evidence to the contrary. 38 U.S.C. §1114; 38 C.F.R. § 3.350(a)(2); Tucker, 11 Vet. App. at 373.

Next, the Board turns to whether SMC based on the need for regular aid and attendance is warranted based on any of the other factors listed in the regulation.

repetitive motion for longer than 30 minutes. Despite this pain, the evidence does not show that the Veteran's bilateral shoulder disabilities affect the use of either hand. This evidence does not demonstrate that he is unable to grasp or manipulate objects such that these tasks could be equally well-served by an amputation stump with prosthesis. The Veteran has presented no lay or medical evidence to the contrary. 38 U.S.C. §1114; 38 C.F.R. § 3.350(a)(2); Tucker, 11 Vet. App. at 373.

Next, the Board turns to whether SMC based on the need for regular aid and attendance is warranted based on any of the other factors listed in the regulation.

The Veteran is not service connected for any disabilities of the eyes. SMC is therefore not warranted due to being blind or nearly so blind as to have corrected visual acuity of 5/200 or less in both eyes or concentric contraction of the visual field to 5 degrees or less. See 38 C.F.R. § 3.351(c)(1). The evidence also fails to show that the Veteran is a patient in a nursing home due to mental or physical incapacity or that he is permanently bedridden as a result of his service-connected disabilities.

The final question is whether the evidence shows a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 C.F.R. § 3.351(c)(3). In this regard, the evidence persuasively weighs against finding that there is a factual need for aid and attendance due to the Veteran's service-connected disabilities.

There is very limited evidence of record pertaining to the Veteran's ability to perform his activities of daily living during the period on appeal. VA treatment records from April 2019 include a functional screening in which the Veteran reported that he needed no help using the telephone, transporting himself (walking, driving, using public transportation), or taking medications. He indicated that he needed "some help" with meal preparation, housework, laundry, or handywork. The evidence does not show that his need for "some help" with meal preparation, housework, laundry, or handywork is due to his service-connected disabilities, as this screening, which was performed during a routine visit, did not specify which disabilities, if any, caused the Veteran to need "some help" with these tasks. Ultimately, the evidence overall does not show that his disabilities have rendered him so helpless as to be in the need of regular aid and attendance of another person. The Veteran has presented no evidence to the contrary.

The Board therefore finds that a factual need for aid and attendance under 38 C.F.R. § 3.352(a) is not shown. His treatment records and VA examinations do not show that he is unable to dress or undress without assistance, unable to keep himself ordinarily clean or presentable without assistance, unable to feed himself without assistance, unable to tend to the wants of nature, is incapacitated such that he requires care or assistance on a regular basis from the hazards or dangers incident to his daily environment, or frequently needs the adjustment of prosthetic or orthopedic appliances. See 38 C.F.R. § 3.352(a).

Thus, for the reasons and bases discussed, the evidence for the claim for SMC based on the need for aid and attendance versus the evidence against the claim is not in "approximate" balance (i.e., nearly equal). Instead, the most probative and, therefore, most persuasive evidence is against this claim. See Lynch, 21 F.4th at 781-82; see also Ortiz, 274 F.3d at 1364. The claim for entitlement to SMC based on the need for aid and attendance is denied.

REASONS FOR REMAND

1. Entitlement to SMC Based on Housebound Status

The instant decision grants entitlement to service connection for an acquired psychiatric disorder. The assignment of a rating for an acquired psychiatric disorder has direct bearing on the claim for entitlement to SMC based on housebound status. The issues are therefore inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Remand of the claim for entitlement to SMC based on housebound status is therefore required.

The matter is REMANDED for the following action:

After assigning a rating for the Veteran's service-connected acquired psychiatric disorder, readjudicate the claim for entitlement to SMC based on housebound status.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board
status. The issues are therefore inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Remand of the claim for entitlement to SMC based on housebound status is therefore required.

The matter is REMANDED for the following action:

After assigning a rating for the Veteran's service-connected acquired psychiatric disorder, readjudicate the claim for entitlement to SMC based on housebound status.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R.M. Sachs, 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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