HEARING LOSS

CYNTHIA M. BRUCE · 2025 · Case ID: A25092155

MIXED

Summary

The veteran, who served from August 1978 to December 1982, with the period of August 1978 to August 1981 being honorable and the subsequent period dishonorable, appeals the denial of service connection for left ear hearing loss, bilateral knee, ankle, and foot conditions, and earlier effective dates for several granted benefits. The Board denied service connection for left ear hearing loss, finding the VA's concession of a current disability to be clearly and unmistakably erroneous due to the audiogram results not meeting regulatory thresholds. The Board granted service connection for tinnitus, finding the VA examiner's opinion inadequate for failing to address the veteran's credible lay statements of in-service onset and continuity, and applying presumptive service connection. Service connection for bilateral knee, ankle, and foot conditions was denied due to lack of in-service incurrence and failure to establish secondary service connection, as the evidence did not link these conditions to service-connected low back disability or radiculopathy. The Board also denied earlier effective dates for TDIU, SMC, acquired psychiatric disability, low back disability, and bilateral lower extremity radiculopathy, finding the April 13, 2021, VA Form 21-526EZ to be the earliest valid claim date. The case was remanded for further development on right ear hearing loss and obstructive sleep apnea (OSA), as the VA examiner's opinions were inadequate or unresponsive to the veteran's claims.

Rationale

May 2021 VA exam audiogram did not meet 38 C.F.R. § 3.385 criteria; AOJ's prior favorable finding of hearing loss was clearly and unmistakably erroneous; Lay statements alone are insufficient to establish a current hearing loss disability

Special Benefit

SMC - HOUSEBOUND; TDIU

Docket No.

241120-496270

Full Decision Text

Citation Nr: A25092155
Decision Date: 10/23/25 Archive Date: 10/23/25

DOCKET NO. 241120-496270
DATE: October 23, 2025

ORDER

Entitlement to service connection for left ear hearing loss is denied.

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for a right knee disability is denied.

Entitlement to service connection for a left ankle disability is denied.

Entitlement to service connection for a right ankle disability is denied.

Entitlement to service connection for left foot hallux valgus is denied.

Entitlement to service connection for left foot plantar fasciitis is denied.

Entitlement to service connection for right foot hallux valgus is denied.

Entitlement to service connection for right foot plantar fasciitis is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of special monthly compensation (SMC) based on the housebound criteria is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for a lumbosacral strain (hereafter, low back disability) is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for a posttraumatic stress disorder (PTSD), major depressive disorder, and alcohol/stimulant use disorder (hereafter, acquired psychiatric disability) is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for left lower extremity sciatic radiculopathy is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for left lower extremity femoral radiculopathy is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for right lower extremity sciatic radiculopathy is denied.

Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for right lower extremity femoral radiculopathy is denied.

REMANDED

Entitlement to service connection for right ear hearing loss is remanded.

Entitlement to service connection for obstructive sleep apnea (hereafter, OSA) is remanded.

FINDINGS OF FACT

1. The evidence fails to demonstrate that the Veteran has been assessed with left ear hearing loss for compensation purposes close to or during the review period.

2. The Veteran has a diagnosis of tinnitus with competent and credible assertions that his symptoms originated during active duty service with continuity of symptomatology to the present.

3. The evidence fails to probatively establish that the Veteran's current bilateral knee, bilateral ankle, bilateral plantar fasciitis, and/or bilateral hallux valgus were incurred in or are otherwise etiologically related to the Veteran's honorable period of active duty service or developed secondary to his service-connected low back disability and/or bilateral lower extremity radiculopathy. The Veteran's right and left foot arthritis and minimal left knee degeneration is not presumptively linked to his honorable active duty service.

4. The Veteran's August 2008 claim seeking a nonservice-connected pension for a low back disability was not a claim for service-connected compensation. The Veteran's December 15, 2020 intent to file attached to the Veteran's claims seeking entitlement to service connection for bilateral hearing loss and tinnitus. The April 13, 2021 VA Form 21-526EZ was the first valid claim seeking entitlement to service connection for an acquired psychiatric disability, a low back disability, bilateral lower extremity radiculopathy, and ancillary benefits of entitlement to a TDIU and SMC based on the housebound criteria, and thus, it serves as the proper effective date for the award of these benefits.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

2. The criteria for entitlement to service connection for tinnitus have been met.

38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The
and thus, it serves as the proper effective date for the award of these benefits.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

2. The criteria for entitlement to service connection for tinnitus have been met.

38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

4. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

6. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

7. The criteria for entitlement to service connection for left foot hallux valgus have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

8. The criteria for entitlement to service connection for left foot plantar fasciitis have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

9. The criteria for entitlement to service connection for right foot hallux valgus have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

10. The criteria for entitlement to service connection for right foot plantar fasciitis have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

11. The criteria for entitlement to an effective date earlier than April 13, 2021, for entitlement to SMC based on the housebound criteria have not been met. 38 U.S.C. §§ 1114, 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.350, 3.400.

12. The criteria for entitlement to an effective date earlier than April 13, 2021, for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.400, 4.16.

13. The criteria for entitlement to an effective date earlier than April 13, 2021, for the award of service connection for a low back disability have not been met.

38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.400.

14. The criteria for entitlement to an effective date earlier than April 13, 2021, for the award of service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 5110, 510
1, 3.102, 3.400, 4.16.

13. The criteria for entitlement to an effective date earlier than April 13, 2021, for the award of service connection for a low back disability have not been met.

38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.400.

15. The criteria for entitlement to an effective date earlier than April 13, 2021, for the award of service connection for left lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400.

16. The criteria for entitlement to an effective date earlier than April 13, 2021, for the award of service connection for left lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400.

17. The criteria for entitlement to an effective date earlier than April 13, 2021, for the award of service connection for right lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400.

18. The criteria for entitlement to an effective date earlier than April 13, 2021, for the award of service connection for right lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1978 to December 1982. The Veteran's active duty service from August 22, 1978 to August 12, 1981, has been determined to be honorable for VA compensation purposes. The Veteran's active duty service from August 22, 1981 to December 17, 1982, has been determined to be dishonorable for VA compensation purposes. See May 2023 and July 2024 administrative determinations.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The law creates a new framework for veterans dissatisfied with VA's decision on their claims to seek review, and this decision has been written consistent with the new AMA framework.

In the November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Board of Veterans' Appeals' (Board) Direct Review docket.

As to the claims seeking entitlement to service connection for OSA, bilateral hearing loss, and tinnitus, the Board may only consider the evidence of record at the time of the October 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the October 2024 AOJ decision on appeal cannot be reviewed by the Board in the consideration of these claims. 38 C.F.R. §§ 20.300, 20.301, 20.801. The October 2024 rating decision determined that new and relevant evidence had been received for these claims.

As to the claims seeking entitlement to service connection for bilateral knee, bilateral ankle, bilateral hallux valgus, and bilateral plantar fasciitis, as well as the earlier effective date claims for the Veteran's service-connected acquired psychiatric and low back disabilities, the Board may only consider the evidence of record at the time of the June 2023 AOJ rating decision, which was subsequently
Any evidence submitted after the October 2024 AOJ decision on appeal cannot be reviewed by the Board in the consideration of these claims. 38 C.F.R. §§ 20.300, 20.301, 20.801. The October 2024 rating decision determined that new and relevant evidence had been received for these claims.

As to the claims seeking entitlement to service connection for bilateral knee, bilateral ankle, bilateral hallux valgus, and bilateral plantar fasciitis, as well as the earlier effective date claims for the Veteran's service-connected acquired psychiatric and low back disabilities, the Board may only consider the evidence of record at the time of the June 2023 AOJ rating decision, which was subsequently subject to higher-level review (HLR) in a July 2024 HLR rating decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the June 2023 rating decision, which was subsequently subject to HLR in a July 2024 HLR rating decision, the Board cannot consider it in this decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

As to the claims related to bilateral lower extremity femoral and sciatic radiculopathy, service connection was awarded in a June 2023 AOJ rating decision, and separate 10 percent ratings were assigned for femoral and sciatic radiculopathy impacting each leg. In response to a July 2023 TDIU application, the AOJ issued a December 2023 rating decision awarding higher 20 percent ratings for sciatic and femoral radiculopathy in each leg, effective September 29, 2022. In March 2024, the Veteran filed VA Form 20-0996 in response to the December 2023 rating decision and identified the issue, in pertinent part, as "Effective date - Bilateral Lower Extremity Radiculopathy." The HLR request was not in response to the June 2023 AOJ decision granting service connection, so this request was not a challenge to the effective date assigned for service connection. Instead, it requested an earlier date for the assignment of the higher 20 percent ratings. In the July 2024 HLR rating decision, the AOJ backdated the 20 percent ratings to April 13, 2021, the date of the initial service connection claim for bilateral lower extremity radiculopathy. In the November 2024 VA Form 10182, the Veteran, in relevant part, identified the July 2024 HLR rating decision and challenged the "Effective Date - Bilateral Lower Extremity Radiculopathy." However, this is an invalid appeal, as the July 2024 HLR rating decision granted the higher 20 percent ratings back to the date of service connection for the Veteran's bilateral lower extremity radiculopathy claims, which is the earliest date allowed under the law. In the November 2024 VA Form 10182, the Veteran did not request higher disability ratings for these claims. Additionally, the November 10182 was received more than 1 year after the June 2023 rating decision awarding service connection, and thus, it was not a timely challenge to the effective date assigned for the award of service connection for bilateral lower extremity femoral and sciatic radiculopathy.

Although there were procedural errors made by the Veteran's attorney, the Board will not penalize the Veteran for his counsel's missteps. Taking a liberal approach, the Board will consider the claims for bilateral lower extremity radiculopathy as inherently linked to the underlying service connection claim for a low back disability, for which the effective date of service connection has been continuously pursued and timely challenged. Accordingly, the evidentiary window rules pertinent to the low back claim shall apply to the Veteran's bilateral lower extremity femoral and sciatic radiculopathy. As such, the Board may only consider the evidence of record at the time of the June 2023 AOJ rating decision, which was subsequently subject to HLR in a July 2024 HLR rating decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the June 2023 rating decision, which was subsequently subject to HLR in a July 2024 HLR rating decision, the Board cannot consider it in this decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

As to the claims seeking earlier effective dates for the award of a TDIU and SMC based on the housebound criteria, the Board may only consider the evidence of record at the
the June 2023 AOJ rating decision, which was subsequently subject to HLR in a July 2024 HLR rating decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the June 2023 rating decision, which was subsequently subject to HLR in a July 2024 HLR rating decision, the Board cannot consider it in this decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

As to the claims seeking earlier effective dates for the award of a TDIU and SMC based on the housebound criteria, the Board may only consider the evidence of record at the time of the December 2023 AOJ rating decision, which was subsequently subject to higher-level review (HLR) in a July 2024 HLR rating decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the December 2023 rating decision, which was subsequently subject to HLR in a July 2024 HLR rating decision, the Board cannot consider it in this decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

As to the claims adjudicated below, if the Veteran would like the U.S. 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[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, as to the claims remanded below, any evidence the Board could not consider will be considered by the AOJ in the lower-level adjudication of the claims. 38 C.F.R. § 3.103(c)(2)(ii).

Under 38 U.S.C. § 7104, Board decisions must be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the periods on review and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra.

Service Connection

Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, air, or space service. 38?U.S.C. §?1131; 38?C.F.R. §?3.303.

Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved.

Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to the Veteran's circumstances or when a claimed disability is shown to be proximately due to, the result of, or aggravated by a service-connected disability.

1. Entitlement to service connection for left ear hearing loss is denied.

The Veteran seeks entitlement to service connection for left ear hearing loss claimed as due to in-service noise exposure.

1. Entitlement to service connection for left ear hearing loss is denied.

The Veteran seeks entitlement to service connection for left ear hearing loss claimed as due to in-service noise exposure.

A foundational requirement for entitlement to service connection for hearing loss is that the Veteran experiences a current disability close to or during the review period, as defined by VA regulations. Pursuant to 38 C.F.R. § 3.385, hearing loss is considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

In the June 2023 rating decision, the AOJ denied the claim due to the lack of a current disability for VA compensation purposes. In the October 2024 rating decision, the AOJ stated that the May 2021 VA examination contained "audiology results which meet the criteria for a diagnosis of hearing loss." The AOJ proceeded to issue a favorable finding that the "VA exam dated May 14, 2021, diagnosed bilateral sensorineural hearing loss in frequency range of 500-4000 Hz to 6000 Hz or higher frequencies."

Pursuant to 38 C.F.R. § 3.104(c), "any finding favorable to the claimant made by either a VA adjudicator...or by the Board...is binding on all subsequent [AOJ] and Board...adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding."

Here, the AOJ's October 2024 concession that the Veteran has been diagnosed with a valid hearing loss disability for VA compensation purposes is clearly and unmistakably erroneous. While the AOJ correctly concluded that the May 2021 VA examiner clinically diagnosed the Veteran with sensorineural hearing loss in the frequency ranges of 500 to 4000 Hz and 6000 Hz and higher, this clinical diagnosis, by itself, is insufficient to meet the current disability requirement of a service connection claim. This is because, as noted above, VA has limited service-connected compensation to hearing loss disabilities that conform to the particular regulatory requirements of 38 C.F.R. § 3.385. At the May 2021 VA examination, an audiogram was conducted and the pure tone thresholds, in decibels, were noted in the left ear:

HERTZ

500 1000 2000 3000 4000

LEFT 25 30 25 25 25

Speech discrimination testing revealed speech recognition ability of 96 percent in the left ear. Pure tone test results were deemed valid for rating purposes and use of the speech discrimination score was deemed appropriate for the Veteran. These findings do not meet the definition of impaired hearing under 38 C.F.R. § 3.385, and these findings serve as evidence that the AOJ's October 2024 favorable finding conceding a left ear hearing loss disability was clearly and unmistakably erroneous.

While the Board acknowledges the Veteran's lay statements, which suggest the presence of decreased hearing acuity in the left ear, lay statements are insufficient to establish a current hearing loss disability, as the applicable regulations establish that hearing loss must meet the quantifiable auditory thresholds or speech discrimination results set forth in 38 C.F.R. § 3.385 to qualify as hearing loss for VA compensation purposes. As the record contains no probative audiometry or speech recognition test results that meet these criteria, the Veteran has not established the presence of a current left ear hearing loss disability close to or during the period on review.

The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which holds that symptoms alone, without a diagnosed disability, may constitute a current disability under 38 U.S.C. § 1110 (and § 1131) in certain circumstances, so long as the symptoms result in functional impairment of earning capacity. However, Saunders is inapplicable in situations where VA has limited compensation to disabilities that conform to particular regulatory requirements, such as 38 C.F.R. § 3.385. Cf. Martinez-Bodon v
, the Veteran has not established the presence of a current left ear hearing loss disability close to or during the period on review.

The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which holds that symptoms alone, without a diagnosed disability, may constitute a current disability under 38 U.S.C. § 1110 (and § 1131) in certain circumstances, so long as the symptoms result in functional impairment of earning capacity. However, Saunders is inapplicable in situations where VA has limited compensation to disabilities that conform to particular regulatory requirements, such as 38 C.F.R. § 3.385. Cf. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020), aff'd. sub. nom, Martinez-Bodon v. McDonough, 28 F.4th 1241 (2022).

As the valid results of the May 2021 VA examination did not show left ear hearing loss for VA compensation purposes, and the record contains no other probative audiogram or speech discrimination results that meet the definition of left ear hearing loss for VA compensation purposes close to or during the period under consideration, the Veteran's appeal seeking entitlement to service connection for left ear hearing loss must be denied due to the absence of a current disability for VA compensation purposes close to during the review period. Additionally, without a current hearing loss disability within the appellate period, there is no basis upon which to consider the application of presumptive service connection under 38 C.F.R. § 3.309(a).

The evidence is not in approximate balance and persuasively weighs against the Veteran's claim. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 780-82 (2021). The appeal seeking entitlement to service connection for left ear hearing loss is denied.

2. Entitlement to service connection for tinnitus is granted.

The Veteran seeks entitlement to service connection for tinnitus. He claims this disability began in August 1978 as a result of in-service noise exposure to sirens, headset noise, generators, trucks, tractor trailers, and weaponry. See January 2021 lay statement; February 2021 VA Form 21-526EZ.

In the June 2023 rating decision, the AOJ issued favorable findings conceding that the Veteran suffered from bilateral tinnitus and his military occupational specialty (MOS) as an administrative specialist exposed him to military noise trauma. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Thus, this claim turns on the dispositive issue of medical nexus.

At the May 2021 VA audiological examination, the Veteran reported that his tinnitus started in basic training when he heard a claymore mine explode. He reported his tinnitus as constant and affecting both sides of the head. The VA examiner issued a negative nexus opinion declining to link the Veteran's tinnitus to military noise exposure. The VA examiner reasoned that the Veteran's MOS of administrative specialist had a low probability of hazardous noise exposure and there were no complaints of tinnitus in the Veteran's service treatment records.

The Board finds this VA medical opinion to be inadequate for adjudicative purposes. In forming an opinion, the VA examiner ignored the Veteran's competent and credible lay reports that his tinnitus began during basic training and has continued to the present, and instead, focused on the lack of contemporaneous in-service evidence of tinnitus complaints in contravention of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

The VA examiner narrowly focused on the limited noise exposure the Veteran would have encountered in his role as an administrative specialist, primarily involving office work. However, the Veteran asserted that his tinnitus began immediately following exposure to loud artillery and claymore mine noise during basic training. The examiner did not address these lay statements of in-service onset and continuity thereafter, nor did she explain why she limited her analysis to the noise exposure associated with his MOS duties. Furthermore, the VA examiner inappropriately relied on the absence of complaints in the service treatment records without considering the relevance of the Veteran's reported exposure to loud noises during basic training. For these reasons, the Board finds the May 2021 VA medical opinion to be inadequately articulated and lacking a sound rationale.

Tinnitus is considered to be a "chronic disease" listed under 38 C.F.R. § 3.309(a) because it is an "other organic disease
following exposure to loud artillery and claymore mine noise during basic training. The examiner did not address these lay statements of in-service onset and continuity thereafter, nor did she explain why she limited her analysis to the noise exposure associated with his MOS duties. Furthermore, the VA examiner inappropriately relied on the absence of complaints in the service treatment records without considering the relevance of the Veteran's reported exposure to loud noises during basic training. For these reasons, the Board finds the May 2021 VA medical opinion to be inadequately articulated and lacking a sound rationale.

Tinnitus is considered to be a "chronic disease" listed under 38 C.F.R. § 3.309(a) because it is an "other organic disease[] of the nervous system;" therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned, then, generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b).

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, including tinnitus, become manifested to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The Veteran is competent to report his personal experiences and recollections, and to describe symptoms perceived through the senses, such as the presence of tinnitus on a chronic and continuous basis since his military service. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994); 38 C.F.R. § 3.159(a)(2). The Board has no reason to doubt the sincerity and credibility of the Veteran's lay reports. In this instance, the Board finds the Veteran's lay reports to be sufficient to support the award of service connection on a chronic diseases presumptive service connection basis. The Veteran's service treatment records are negative for findings of tinnitus, but he has alleged the onset of tinnitus symptoms during his period of honorable active duty service. The chronicity of the Veteran's condition in service is not documented in the contemporaneous service treatment records, but he has provided adequate lay evidence establishing continuity of symptomatology following service separation. See Walker, 708 F.3d at 1336.

In sum, the Veteran's competent and credible lay statements regarding the continuous nature of his tinnitus since in-service onset have been deemed highly probative and support the award of service connection on a presumptive basis under 38 C.F.R. §§ 3.303(b) and 3.309(a). The Veteran's appeal seeking entitlement to service connection for tinnitus is granted.

3. Entitlement to service connection for bilateral knee, bilateral ankle, bilateral plantar fasciitis, and bilateral hallux valgus disabilities is denied.

The Veteran seeks entitlement to service connection for bilateral knee, bilateral ankle, bilateral plantar fasciitis, and bilateral hallux valgus disabilities. In the March 2024 appellate brief, the Veteran's attorney argued that these disabilities developed secondary to the Veteran's service-connected low back disability and his bilateral lower extremity radiculopathy claims under the provisions of 38 C.F.R. § 3.310. In support thereof, the attorney cited an August 2023 VA back examination report which noted "unsteady gait and giveaway weakness in knees" and July 2022 VA treatment records identifying ankle pain.

The current
bilateral plantar fasciitis, and bilateral hallux valgus disabilities is denied.

The current disability element of the Veteran's service connection claims is not in dispute. In the July 2024 HLR rating decision, the AOJ issued favorable findings that the Veteran has been assessed with bilateral knee buckling, bilateral ankle crepitus and pain, and bilateral foot pain. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c).

Regarding in-service incurrence, the Veteran's service treatment records are silent for complaints, symptoms, findings, or diagnosis of any bilateral knee, ankle, or foot complaints during his period of honorable active duty service. While heel and toe pain were noted in December 1981, these notations occurred during the Veteran's period of dishonorable service and cannot be considered in the adjudication of these claims. The Veteran has not provided any lay evidence placing the onset of his bilateral knee, ankle, or foot complaints during his honorable active duty service. Based on the above, the in-service incurrence element has not been met. In the absence of an in-service event, injury, disease, the medical nexus element cannot be satisfied as there is nothing to link the Veteran's disabilities to during his honorable active duty service. Accordingly, the claims must be denied under a direct service connection theory of entitlement.

In denying the claims, the Board acknowledges that the AOJ did not obtain VA examinations or direct service connection VA medical opinions prior to the issuance of the June 2023 AOJ rating decision. This does not constitute a duty to assist error, as the requirements of 38 C.F.R. § 3.159(c)(4) and McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) were not met during the predecisional period. The record did not contain evidence establishing that an event, injury, or disease occurred during his honorable active duty service. Additionally, there was no evidence indicating that the Veteran's current disabilities may have been associated with an established event, injury, or disease during his honorable active duty service. As such, the second and third McLendon elements were not satisfied. Notably, in the March 2024 written argument, the Veteran's attorney did not assert a direct service connection theory of entitlement or otherwise argue that direct service connection VA examinations were triggered during the predecisional period.

The record reflects that the Veteran has been assessed with radiographed confirmed arthritis in the bilateral feet and "minimal degenerative changes in the left knee" (interpreted as arthritis). See June 2021 and August 2021 radiographs; September 2021 VA podiatry records. Arthritis is an eligible "chronic disease" subject to presumptive service connection consideration under 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a). The Veteran has not alleged, and the evidence does not show in-service onset of left or right foot or left knee complaints during his honorable active duty service, continuity of complaints since service, or manifestation of arthritis to a compensable degree within one year of service separation. As such, chronic disease presumptive service connection for the Veteran's left knee and left and right foot arthritis is not warranted under the current evidentiary record.

In the March 2024 appellate brief, the Veteran's attorney solely argued for secondary service connection, alleging that the Veteran's bilateral knee, bilateral ankle, bilateral plantar fasciitis, and bilateral hallux valgus disabilities were related to his service-connected low back disability and his bilateral lower extremity radiculopathy.

During the predecisional period, the evidence did not indicate that the Veteran's claimed disabilities may have been associated with the Veteran's service-connected low back disability and/or his bilateral lower extremity sciatic or femoral radiculopathy. As such, the elements of 38 C.F.R. § 3.159(c)(4) and McLendon were not met during the predecisional period, and the AOJ did not error when it decided to proceed with adjudication of the claims without secondary service connection VA medical opinions. The records from the predecisional period indicated that the Veteran's gait fluctuated between normal and antalgic over time, but regardless, there was no evidence indicating that any gait abnormalities attributed to the Veteran's service-connected low back or bilateral lower extremity radiculopathy caused or aggravated any disabilities impacting the knees, ankles, or feet. While the Veteran's attorney cited VA treatment records from June 2022 documenting complaints of ankle pain, it is unclear how this evidence indicated that the Veteran's ankle pain was caused or aggravated by his service-connected low back disability and/or bilateral lower extremity radiculopathy. As such, the Board is not persuaded that these June 2022 VA treatment records were sufficient to trigger VA's duty to assist.

In the March 2024 appellate brief, the Veteran's attorney also cited the results of an August 2023 VA back examination and its findings of an unsteady gait and knee weakness as evidence purportedly showing an indication that the Veteran's low back disability caused or aggravated any disabilities impacting the knees, ankles, or feet. This argument fails for two primary reasons. First, this VA examination evidence was obtained after the June 2023 AOJ rating decision, which is when the relevant evidentiary window closed, and could not have triggered VA's duty to assist during the predecisional period. The attorney's argument is predicated on a fundamental misunderstanding of the evidentiary window limitations operating under the AMA.

Second, even if this evidence was received during a window where it could have been considered, the attorney did not explain how reports of an unsteady gait or knee weakness indicate that the Veteran's low back disability caused or aggravated any disabilities of the knees, ankles, or feet. The attorney's argument seems to rely on his own assumptions, which are not connected to any supporting or corroborating lay or medical evidence on record. Therefore, these assumptions could not have triggered VA's duty to assist.

Based on the above, the Board concludes that the evidence of record did not trigger VA's duty to assist in obtaining secondary service connection medical opinions prior to the issuance of the June 2023 AOJ decision.

Independent of the duty to assist analysis, above, the record also fails to contain competent evidence establishing that the Veteran's current knee, ankle, and/or foot disabilities were caused or aggravated by the Veteran's service-connected low back disability and/or his bilateral lower extremity radiculopathy. The only person making such an assertion is the Veteran's attorney in the March 2024 appellate brief, and he is without the training, education, or expertise to opine on complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Ci. 2007). The attorney's March 2024 appellate brief has been considered in this decision as argument in support of the bilateral knee, ankle, and foot service connection claims; however, to the extent that the attorney intended this argument to be viewed as evidence, it was received outside of a valid evidentiary window and cannot be used to support the claims.

The evidence is not in approximate balance and persuasively weighs against the Veteran's claims. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch, 21 F.4th at 780-82. The Veteran's appeals seeking entitlement to service connection for bilateral knee, bilateral ankle, bilateral plantar fasciitis, and bilateral hallux valgus disabilities are denied under all applicable theories of entitlement raised by the Veteran or reasonably raised by the record.

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Earlier Effective Date Claims

4. Entitlement to an effective date earlier than April 13, 2021, for the award of SMC based on the housebound criteria is denied.

5. Entitlement to an effective date earlier than April 13, 2021, for the award of entitlement
(b); 38 C.F.R. § 3.102; see Lynch, 21 F.4th at 780-82. The Veteran's appeals seeking entitlement to service connection for bilateral knee, bilateral ankle, bilateral plantar fasciitis, and bilateral hallux valgus disabilities are denied under all applicable theories of entitlement raised by the Veteran or reasonably raised by the record.

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Earlier Effective Date Claims

4. Entitlement to an effective date earlier than April 13, 2021, for the award of SMC based on the housebound criteria is denied.

5. Entitlement to an effective date earlier than April 13, 2021, for the award of entitlement to a TDIU is denied.

6. Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for a low back disability is denied.

7. Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for an acquired psychiatric disability is denied.

8. Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for left lower extremity sciatic radiculopathy is denied.

9. Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for left lower extremity femoral radiculopathy is denied.

10. Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for right lower extremity sciatic radiculopathy is denied.

11. Entitlement to an effective date earlier than April 13, 2021, for the award of service connection for right lower extremity femoral radiculopathy is denied.

In the June 2023 AOJ rating decision, the Veteran was awarded entitlement to service connection for an acquired psychiatric disability, a low back disability, and bilateral lower extremity femoral and sciatic radiculopathy, all effective April 13, 2021. In the July 2024 AOJ rating decision, the Veteran was awarded entitlement to a TDIU and SMC based on the housebound criteria, effective April 13, 2021. On appeal, the Veteran seeks an effective date earlier than April 13, 2021, for the award of compensation benefits based on the above claims.

The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b).

Prior to March 24, 2015, the applicable regulations used the terms "claim" and "application" interchangeably, and they were defined broadly in 38 C.F.R. § 3.1(p) to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." An intent to apply for benefits is an essential element of any claim, whether formal or informal. Criswell v. Nicholson, 20 Vet. App. 501 (2006). An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014).

Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57660 (Sept. 25, 2014). These amendments apply to claims and appeals filed on or after March 24, 2015. On August 23, 2017, the President signed into law the AMA, which created a new framework for veterans dissatisfied with VA's decision on their claims to seek review. The AMA system applies to all claims, and requests for reopening of finally adjudicated claims, for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The AMA continued the requirement of using specific forms to initiate formal claims for benefits.

In August 2008, the Veteran submitted VA Form 21-526 seeking nonservice-connected pension benefits due to a low back disability. According to the law and regulations at that time, a pension
2017, the President signed into law the AMA, which created a new framework for veterans dissatisfied with VA's decision on their claims to seek review. The AMA system applies to all claims, and requests for reopening of finally adjudicated claims, for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The AMA continued the requirement of using specific forms to initiate formal claims for benefits.

In August 2008, the Veteran submitted VA Form 21-526 seeking nonservice-connected pension benefits due to a low back disability. According to the law and regulations at that time, a pension claim could be treated as a claim for compensation under 38 C.F.R. § 3.151(a). While VA was not obligated to do so, it had the discretion to decide based on the claim's context and content, and whether it indicated a belief in entitlement to compensation. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997). In other words, the inquiry is whether the August 2008 filing reasonably raised a claim of service connection for a low back disability.

A review of the August 2008 claims form reveals no clear intent on the part of the Veteran to request entitlement to service connection for a low back disability. At the time that the August 2008 claims form was received, the Veteran was aware that his character of discharge was under other than honorable conditions, and this was a bar to VA service-connected compensation benefits. It was not until May 2023 that VA adjudicated the April 22, 1978 to August 21, 1981, portion of his service to be under honorable conditions for VA compensation purposes; although the period from August 22, 1981 to December 17, 1982, remains under dishonorable conditions for VA compensation purposes.

Furthermore, in the August 2008 claims form, the Veteran indicated that his low back issues began in 2002, well after his active duty service had ended. He specifically indicated that he was seeking "non service connected benefits" due to a post-service on-the-job injury to his low back. The application contained no statement by the Veteran offering a link between his "low back injury" and active service. Even when reading the August 2008 claims form in the light most favorable to the Veteran, it did not demonstrate an intent to file for service-connected compensation benefits. Therefore, the August 2008 claims application did not constitute a formal or informal claim for service connection for a low back disability and cannot be used as the date of claim for the Veteran's low back disability.

The record contains no formal or informal claims seeking entitlement to service connection for a psychiatric disability, a low back disability, or bilateral lower extremity femoral or sciatic radiculopathy, as well as entitlement to TDIU and SMC benefits prior to March 24, 2015. Thereafter, no claims for service-connected benefits were received until a December 15, 2020 intent to file document.

Claimants may indicate their desire to file a claim for benefits by submitting an intent to file to VA. 38 C.F.R. § 3.155(b). If VA receives a complete application form, as defined by 38 C.F.R. § 3.160(a), within one year of receipt of the intent to file, the complete claim is considered filed as of the date of receipt of the intent to file. See id. The provisions of 38 C.F.R. § 3.155(d)(1)(ii) state that "[o]nly one complete claim for a benefit may be associated with each intent to file" and "[i]n the event multiple complete claims for a benefit are filed within 1 year of an intent to file a claim for that benefit, only the first claim filed will be associated with the intent to file a claim." Id. For the sake of preserving an effective date, an intent to file document attaches to the next complete claim received within one year of the filing of an intent to file a claim. Id.

Here, the first complete claim following the receipt of the December 15, 2020 intent to file a claim was the February 23, 2021 VA Form 21-526EZ seeking service connection for bilateral hearing loss and tinnitus. Thus, the intent to file a claim document attached to these service connection claims for effective date purposes. No formal claim or subsequent intent to file a claim was received until the April 13, 2021 VA Form 21-526EZ, which in relevant part, sought service connection for a psychiatric disability, a lumbar strain, and bilateral lower extremity radiculopathy (claimed as sciatica). Thus, when service connection was granted for the Veteran's acquired psychiatric disability, low back disability, and bilateral lower extremity femoral and sciatic radiculopathy, the AOJ correctly made service connection effective as of April 13, 2021, the first date that a valid claim for such benefits was received. Likewise, when TDIU and SMC based on the housebound criteria were granted as ancillary to the claims received on April 13, 2021, they were properly made effective as of that date.

Based on the above, April 13, 2021, is the earliest effective date under the law for the Veteran's service-connected acquired psychiatric, low back, and bilateral lower extremity femoral and sciatic radiculopathy disabilities, as well as entitlement to a TDIU and SMC based on the housebound criteria. No claims were pending for these benefits prior to the receipt of the April 13, 2021 receipt of the VA Form 21-526EZ.

In March 2024, the Veteran's attorney argued that the Veteran was entitled to an effective date "no later than 02/23/2021" for the award of a TDIU and service connection for his acquired psychiatric disability, low back disability, and bilateral lower extremity femoral and sciatic radiculopathy. Citing the July 2023 TDIU application, the attorney argued that the Veteran has been unable to maintain substantially gainful employment since at least February 23, 2021. The attorney also argued that February 23, 2021, was the date of claim for the Veteran's service-connected acquired psychiatric disability, low back disability, and bilateral lower extremity femoral and sciatic radiculopathy, and the matters have been continuously pursued since that date.

The attorney's argument is not supported by the evidence of record. As noted above, the only claims received on February 23, 2021, were the Veteran's claims seeking entitlement to service connection for bilateral hearing loss and tinnitus. The claims seeking service connection for an acquired psychiatric disability, a low back disability, and bilateral lower extremity radiculopathy were not received until April 13, 2021. Thus, the attorney's arguments citing February 23, 2021, as the date of claim are erroneous.

Moreover, the Veteran's claim seeking entitlement to service connection for left ear hearing loss has been denied above, and while the issue of service connection for right ear hearing loss remains unresolved, there is no evidence that this disability resulted in or contributed to the Veteran's individual unemployability such that the TDIU claim could attach to such a claim. Similarly, while the claim of service connection for tinnitus has been granted, there is no evidence to suggest that the tinnitus caused or contributed to the Veteran's individual unemployability. Therefore, the TDIU claim cannot attach to the tinnitus or right ear hearing loss claims for effective date purposes. Consequently, there is no basis for potentially supporting an earlier effective date of December 15, 2020, the date of receipt of the intent to file associated with the Veteran's tinnitus and right ear hearing loss claim.

The disabilities giving rise to the Veteran's award of a TDIU were not in effect any earlier than April 13, 2021, and thus, regardless of whether the Veteran was individually unemployable prior to this date, the proper effective date for the award of a TDIU rating aligns with the effective date for the underlying service connection claims.

The Veteran's attorney did not provide any argument in support of an earlier effective date for the award of SMC based on the housebound criteria. The effective date for SMC based on the housebound criteria is directly linked to the underlying service connection claims. In this case, the Veteran's claims for an acquired psychiatric disability, a low back disability, and bilateral lower extremity radiculopathy were all received on April 13, 2021. Since
earlier than April 13, 2021, and thus, regardless of whether the Veteran was individually unemployable prior to this date, the proper effective date for the award of a TDIU rating aligns with the effective date for the underlying service connection claims.

The Veteran's attorney did not provide any argument in support of an earlier effective date for the award of SMC based on the housebound criteria. The effective date for SMC based on the housebound criteria is directly linked to the underlying service connection claims. In this case, the Veteran's claims for an acquired psychiatric disability, a low back disability, and bilateral lower extremity radiculopathy were all received on April 13, 2021. Since SMC is considered an ancillary benefit that arises as a consequence of these service-connected disabilities, its effective date naturally tracks back to the date of these original claims.

Based on the foregoing, the evidence is not in approximate balance and persuasively weighs against the Veteran's claims. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; see Lynch, 21 F.4th at 780-82. The Veteran's appeals seeking an effective date earlier than April 13, 2021, for the award of service connection for an acquired psychiatric disability, a low back disability, bilateral lower extremity femoral and sciatic radiculopathy, entitlement to a TDIU, and entitlement to SMC based on the housebound criteria are denied.

REASONS FOR REMAND

Pursuant to 38 C.F.R. § 20.802(a), the Board's authority to remand a claim is limited to instances requiring (1) correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the date of the AOJ decision on appeal, or (2) the correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim.

1. Entitlement to service connection for right ear hearing loss is remanded.

The Veteran seeks entitlement to service connection for right ear hearing loss claimed as due to military noise exposure. The Veteran attended a May 2021 VA audiological examination which confirmed the presence of right ear hearing loss for VA compensation purposes. The VA examiner issued a negative medical nexus opinion declining to link the Veteran's right ear hearing loss to his active duty service because his in-service audiograms were normal. It has been established that a claim of entitlement to service connection for hearing loss may not be denied by the Board simply because normal hearing was demonstrated in the Veteran's service treatment records. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the rationale supporting this VA medical opinion was insufficient under controlling case law, rendering it inadequate for adjudicative purposes. This deficiency was apparent prior to the issuance of the October 2024 rating decision, and thus, remand for corrective action is authorized under 38 C.F.R. § 20.802(a).

2. Entitlement to service connection for OSA is remanded.

The Veteran seeks entitlement to service connection for OSA. His primary contention on appeal is that his OSA developed secondary to his service-connected disabilities with obesity serving as an intermediary. See December 2022 lay statement; March 2024 argument.

"[T]here is currently no provision in the rating schedule to compensate for obesity." Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). Indeed, in a precedential opinion, VA's General Counsel concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and may not be service connected on a direct basis. VAOPGCPREC 1-2017; but see Larson v. McDonough, 10 F.4th 1325 (Fed. Cir. 2021) (suggesting, but not holding, that obesity may constitute a disability for VA compensation purposes if it results in a functional impairment of earning capacity). Nonetheless, the General Counsel also recognized that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-201
.C. §§ 1110 and 1131 and may not be service connected on a direct basis. VAOPGCPREC 1-2017; but see Larson v. McDonough, 10 F.4th 1325 (Fed. Cir. 2021) (suggesting, but not holding, that obesity may constitute a disability for VA compensation purposes if it results in a functional impairment of earning capacity). Nonetheless, the General Counsel also recognized that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 at 2. The first inquiry is whether the service-connected disability caused the veteran to become obese. If so, then the adjudicator must address whether the obesity (as a result of the service-connected disability) was a substantial factor in causing the nonservice-connected disability, and whether the nonservice-connected disability would not have occurred but for the obesity. See id. at 9-10. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the rationale from the General Counsel's opinion was extended and it was held that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis. See 38 C.F.R. § 3.310(b).

The AOJ obtained a VA medical opinion in January 2023 addressing direct service connection principles. The VA examiner found no evidence of sleep hygiene symptoms during the Veteran's honorable active duty service.

The January 2023 VA examiner also addressed whether the Veteran's OSA was caused by his service-connected low back disability and/or acquired psychiatric disability. The VA examiner indicated there was no medical literature supporting low back pain or PTSD as a cause of OSA, as the condition was due to the relaxation of the muscles in the back of throat during sleep. The examiner cited excessive weight, obesity, neck circumference, age, male sex, family history, alcohol use, smoking, nasal congestion, and certain medical conditions as risk factors for the development of OSA. The VA examiner did not address whether any of the Veteran's service-connected conditions caused the Veteran to become obese, and if so, whether the obesity (as a result of the service-connected disability) was a substantial factor in causing or aggravating his OSA, and whether his OSA would not have occurred but for the obesity. As such, the medical opinion was insufficient to resolve the claim.

An addendum VA medical opinion was obtained in April 2023, where the VA examiner was requested to address whether the Veteran's OSA was caused by his service-connected low back disability. The resulting medical opinion mirrored the one received in January 2023.

In the July 2024 HLR rating decision, the Higher-Level Reviewer identified a duty to assist error and returned the matter to the AOJ for an additional medical opinion addressing the obesity as intermediary theory of entitlement. Unfortunately, the VA medical opinion received in August 2024 did not address this theory. Instead, the examiner opined that the Veteran's OSA was less likely than not related to his military service. This VA medical opinion was not responsive to the HLR rating decision's return request and did not address the primary theory of entitlement raised by the Veteran. Notably, at the January 2023 VA examination, the Veteran placed the onset of his sleep issues in 2001, but at the August 2024 VA examination, he alleged onset of sleep issues in 1981-1982 "before getting out of the military." These inconsistencies render the Veteran an unreliable medical historian regarding the origins of his OSA and associated symptoms.

The claim must be remanded as no VA medical opinion has adequately addressed the obesity as an intermediary theory of entitlement raised by the Veteran. The August 2024 VA medical opinion was not responsive to the July 2024 HLR rating decision's return request, and this was apparent prior to the issuance of the October 2024 AOJ rating decision. Accordingly, a remand is authorized to correct this predecisional duty to assist error. 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

1. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran's right ear hearing loss. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry:

(a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current
this was apparent prior to the issuance of the October 2024 AOJ rating decision. Accordingly, a remand is authorized to correct this predecisional duty to assist error. 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

(a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current right ear hearing loss is etiologically related to the hazardous noise exposure sustained during his honorable active duty service?

The VA examiner is requested to consider and address the Veteran's January 2021 lay statements regarding the origin of his perceived right ear hearing loss and his military noise exposure during basic training.

2. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran's OSA. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries:

(a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obesity was caused or aggravated (i.e., underwent any incremental increase in disability, regardless of its permanence) by any of the Veteran's service-connected disabilities?

(b.) If so, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher):

(i) that the Veteran's obesity was a substantial factor in causing his OSA AND

(ii) that the Veteran's OSA would NOT have occurred but for the obesity caused or aggravated by the Veteran's pertinent service-connected disabilities?

3. The AOJ is requested to ensure that all medical opinions are supported by complete explanatory rationales based on the VA examiners' medical expertise and clinical experience; current medical principles; and citations to the record, as appropriate.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Galante, 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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