HEARING LOSS

N. RIPPEL · 2025 · Case ID: 25001657

MIXED

Summary

The veteran, who served in the United States Marine Corps from September 1986 to September 1990, appeals the denial of service connection for shin splints (left lower extremity), an acquired psychiatric disorder including PTSD, and right eye vision loss. The veteran also appeals the denial of service connection for bilateral hearing loss and type 2 diabetes mellitus, which were granted by the Board. The Board found the veteran's bilateral hearing loss to be service-connected, granting it based on the benefit-of-the-doubt rule due to approximate balance of evidence, including a credible account of noise exposure and a favorable VA opinion, despite a conflicting negative opinion. Service connection for type 2 diabetes mellitus was granted on a secondary basis, proximately due to service-connected obstructive sleep apnea with obesity as an intermediate step, also applying the benefit-of-the-doubt rule due to approximate balance of evidence. The claims for shin splints (left lower extremity), acquired psychiatric disorder (including PTSD), and right eye vision loss were denied due to lack of competent evidence linking them to service or a current diagnosis. The PTSD claim was denied because the VA examiner found no current diagnosis meeting DSM-5 criteria. The right eye vision loss claim was denied due to lack of objective evidence and the examiner's finding that any reported symptoms were likely due to age-related changes or post-service LASIK surgery, not service. The claim for allergic rhinitis (claimed as nasal fracture) was remanded for further development, specifically for a VA addendum opinion on the nature and etiology of the allergic rhinitis and its potential service connection.

Rationale

Credible account of acoustic trauma and noise exposure during service; AOJ conceded acoustic trauma during service; Approximate balance of evidence, benefit-of-the-doubt applied

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-23 079

Full Decision Text

Citation Nr: 25001657
Decision Date: 02/04/25 Archive Date: 02/04/25

DOCKET NO. 19-23 079
DATE: February 4, 2025

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for type 2 diabetes mellitus is granted.

Entitlement to service connection for shin splints, left lower extremity, is denied.

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied.

Entitlement to service connection for right eye vision loss is denied.

REMANDED

Entitlement to service connection for allergic rhinitis (claimed as nasal fracture) is remanded.

FINDINGS OF FACT

1. The Veteran's bilateral hearing loss disability had its onset during service.

2. The Veteran's diabetes mellitus is proximately due to and caused by his service-connected obstructive sleep apnea.

3. There is no disability manifested as shin splints, left lower extremity or functional impairment of earning capacity due to shin splints, left lower extremity.

4. The Veteran does not have a current diagnosed psychiatric disorder that conforms to DSM-5 criteria.

5. There is no disability manifested as right eye vision loss.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385.

2. The criteria for service connection for type 2 diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for shin splints, left lower extremity, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.

4. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.

5. The criteria for service connection for right eye vision loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from September 1986 to September 1990.

These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2017 and January 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Acting Veterans Law Judge in an April 2022 virtual hearing.

These matters were previously before the Board in June 2023 when they were remanded for additional development.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995); but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating 3.310(b) for the use of the phrase "prox
1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995); but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating 3.310(b) for the use of the phrase "proximately due to" in the context of aggravation). Specifically, in Spicer, the Court held that 38 U.S.C. § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability.

The Board notes that this broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality-whether through an inability to treat or a more direct, etiological cause. The Federal Circuit noted that nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality. Thus, the Court in Spicer found the phrase "proximately due to" under 3.310(b) inconsistent with § 1110 and, therefore "unlawful," consequently, for "aggravation of non-service-connected disabilities" it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. Id.

1. Entitlement to service connection for bilateral hearing loss.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Veteran has stated that difficulties with his hearing started around 1987, during service, and have gradually worsened over time. See June 2024 VA audiological examination.

The Veteran has a current diagnosis of bilateral hearing loss. See June 2024 VA audiological examination. Thus, the first element of service connection is met.

Regarding in-service incurrence, the Veteran has reported noise exposure from service, including from aircraft, sirens, among other things. See June 2024 VA audiological examination. The Board finds the Veteran's account of acoustic trauma and noise exposure during service to be credible and consistent with the circumstances of his service. Moreover, the AOJ conceded acoustic trauma during service. See November 2017 rating decision. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Because in-service noise exposure is established, the second element of service connection has been met. The remaining question is whether there is a nexus between the Veteran's in-service noise exposure and his current bilateral hearing loss.

The Veteran has competently and credibly reported that he experienced hearing loss during and since service due to the in-service acoustic trauma. The Board notes that there is evidence both in support and against the Veteran's claim. See, e.g., August 2024 VA medical opinion (opining the conceded noise exposure during service and literature support hearing loss years after exposure indicate that it is at least as likely as not that the Veteran's hearing loss is related to his conceded acoustic trauma during service); cf. June 2024 VA medical opinion (opining there is no evidence to indicate a time as to when this hearing loss may have occurred in service or out of service, and it was less likely than not incurred in or caused by the claimed in-service injury, event or illness). However, in providing the opinion, the June 2024 VA examiner relied on the Veteran's normal hearing at separation, rendering the opinion inadequate.
against the Veteran's claim. See, e.g., August 2024 VA medical opinion (opining the conceded noise exposure during service and literature support hearing loss years after exposure indicate that it is at least as likely as not that the Veteran's hearing loss is related to his conceded acoustic trauma during service); cf. June 2024 VA medical opinion (opining there is no evidence to indicate a time as to when this hearing loss may have occurred in service or out of service, and it was less likely than not incurred in or caused by the claimed in-service injury, event or illness). However, in providing the opinion, the June 2024 VA examiner relied on the Veteran's normal hearing at separation, rendering the opinion inadequate. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Based on the evidence of record, the Board finds the evidence is in approximate balance, and therefore the benefit-of-the-doubt rule is applicable, and that service connection for bilateral hearing loss is warranted. See Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

2. Entitlement to service connection for type 2 diabetes mellitus.

The Veteran seeks service connection for diabetes as being directly related to service, or alternatively, as a result of obesity as an intermediate step relating to his service-connected disabilities.

Although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner v. Tran, 33 Vet. App. 241 (2021).

The evidence of record shows the Veteran has been diagnosed with diabetes mellitus. See September 2016 VA treatment record.

This matter was remanded by the Board in June 2023 to afford the Veteran a VA examination to determine the nature and etiology of his diabetes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In a July 2024 VA addendum opinion, it was noted that sleep apnea may cause weight gain, likely due to the disruption in sleep that leads to fatigue, increased appetite and cravings, and hormonal changes known to affect body weight. It was further stated that excess weight gain is a major cause of hypertension. The examiner concluded that obesity does play a significant role in the development and aggravation of hypertension and diabetes.

The Board notes that the Veteran has been awarded service connection for obstructive sleep apnea.

Based on the June 2024 addendum opinion that supports an association between sleep apnea and obesity, and obesity being a significant factor in the development of diabetes, the Board finds that the evidence is in approximate balance, and therefore the benefit-of-the-doubt rule is applicable, and the Veteran's diabetes mellitus is proximately due to his service-connected obstructive sleep apnea, with obesity serving as an intermediate step. See Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). Accordingly, service connection for type 2 diabetes mellitus is warranted on a secondary basis. 38 C.F.R. § 3.310.

3. Entitlement to service connection for shin splints, left lower extremity.

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

The Veteran was afforded a VA examination in January 2018. The examiner diagnosed shin splints, right lower extremity. No finding or diagnosis was made to the left lower extremity as to whether or not he had shin splints.

The Veteran was afforded another VA examination in June 2024. The examiner noted the Veteran had a normal left leg exam, and shin splits, left lower extremity, was not diagnosed. There was no evidence of functional loss or loss of functional impairment. There was no evidence of pain on physical evaluation, crepitus, muscle atrophy, or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.

While the Veteran contends and has testified that he has had shin splints,
2018. The examiner diagnosed shin splints, right lower extremity. No finding or diagnosis was made to the left lower extremity as to whether or not he had shin splints.

While the Veteran contends and has testified that he has had shin splints, left lower extremity, since service, there must be at least some competent evidence linking such disability to service. Without such competent evidence, there is no basis to grant service connection.

In reaching this decision, the Board has considered the Veteran's lay statements and testimony. The question, however, is whether the Veteran has shin splints of the left lower extremity. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson without the appropriate expertise, the claimant cannot offer a competent opinion on the diagnosis of a disorder such as shin splints.

Inasmuch as there is no evidence of functional impairment of earning capacity due to shin splints, left lower extremity, during the appeal period, the claim is again denied. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also June 2024 VA knee and lower leg conditions examination (finding no functional loss or loss of functional impairment).

In this case, the evidence shows no shin splints, left lower extremity, or functional impairment of earning capacity due to shin splints, left lower extremity. Therefore, the criteria for service connection for shin splints, left lower extremity, are not met. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of evidence, the benefit-of-the-doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.

Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997).

Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 14,945,094 (Aug. 4, 2014).

The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred.

However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor. See 75 Fed. Reg. 39,843 (July 13, 2010);
record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred.

However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor. See 75 Fed. Reg. 39,843 (July 13, 2010); see also 75 Fed. Reg. 41,092 (July 15, 2010) (correcting effective and applicability dates). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." As such is not alleged in this case, further discussion of the revised provisions is unnecessary.

The Board notes that there must be a valid diagnosis per the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022). Psychiatric symptoms alone without a formal psychiatric diagnosis under DSM-5 is not a disability for VA purposes.

The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD, on the basis that it had its onset during service. The Veteran has stated and testified that during boot camp, he was assaulted by a commanding officer for accidentally mishandling his laundry, and was physically attacked from behind, suffering cuts to his neck, upper back and shoulder. See January 2017 stressor statement; see also April 2022 Board hearing. Alternatively, the Veteran contends that his psychiatric disorder is secondary to his service-connected disabilities. See April 2022 Board hearing.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor).

The Veteran was afforded a VA mental disorders examination in June 2024. The examiner found that the Veteran did not have a current mental disorder diagnosis that met DSM criteria.

The Board notes that although the Veteran is competent to report his symptoms, a determination as to whether the Veteran has a diagnosed psychiatric disorder, including PTSD, is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran has no known or reported medical expertise, he is not legally competent to diagnose a psychiatric disorder.

The June 2024 VA opinion rendered by the VA psychologist is the only opinion of record whether the Veteran has a current mental disorder that meets DSM criteria. As it was provided by a medical professional competent to provide such a diagnosis, the Board finds the opinion has significant probative value.

In sum, the evidence is persuasively against the claim. As there is not an approximate balance of evidence, the benefit-of-the-doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, service connection for an acquired psychiatric disorder, including PTSD, is not warranted.

5. Entitlement to service connection for right eye vision loss.

The Veteran contends that he suffered a nasal fracture while coming up from the bottom of a swimming pool when he was hit in the face by the knee of someone else jumping into the pool and has since suffered from vision loss. See January 2017 Veteran statement; see also November 2017 VA bones examination.

The Veteran's service treatment records show he complained of and received treatment for edema of the right eye and was diagnosed with a possible right orbital fracture. See August 1987 report.

The Veteran was afforded a VA examination in November 201
3.102. Therefore, service connection for an acquired psychiatric disorder, including PTSD, is not warranted.

5. Entitlement to service connection for right eye vision loss.

The Veteran's service treatment records show he complained of and received treatment for edema of the right eye and was diagnosed with a possible right orbital fracture. See August 1987 report.

The Veteran was afforded a VA examination in November 2017 wherein the examiner found there was no objective evidence to support a current diagnosis for the claimed condition of right eye vision loss.

At the April 2022 Board hearing, the Veteran testified that he has had intermittent blurry vision with floaters since the reported right eye injury.

The Veteran was afforded another VA examination in June 2024. The Veteran complained of right eye blurry vision and indicated he no longer has floaters. The examiner noted that visual field testing was performed due to the claim of vision loss, but the field testing results were unreliable since the Veteran was fatigued and repeatedly falling asleep during the field testing. The examiner found that there was no ocular condition that correlates with the visual field pattern.

In a separate opinion, the June 2024 examiner noted that there were some complaints of blur related to refractive error, which were resolved with updated refractive prescriptions. It was noted the Veteran had bilateral LASIK surgery in approximately 2002, and that if he had any vision loss of the right eye or other significant pathology of the right eye, he would not have been a candidate to receive LASIK surgery. The examiner stated there were no complaints, diagnosis or finding of any floaters in VA treatment records, and the Veteran on examination denied seeing any floaters. However, it was noted that the Veteran was told floaters were common after LASIK, and that he attributed any floaters to that, indicating no link to the reported right eye injury. The Veteran has reported his right eye did not seem as clear as it did in his teens, which would most likely be due to normal age-related changes, ocular dominance, his early cataracts, and/or the Veteran's long history of meibomian gland dysfunction and dry eye syndrome. There is no history of diagnosis for vision loss of the right eye, and no finding of vision loss of the right eye on current examination. There was no diagnosis of right eye vision loss that could be directly related to service.

For purposes of entitlement to benefits, refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Unless a refractory error was subjected to a superimposed disease or injury during service which created additional disability, service connection is prohibited. See VAOPGCPREC 82-90.

While the Veteran contends and has testified that he has right eye vision loss since service, there must be at least some competent evidence linking such disability to service. Without such competent evidence, there is no basis to grant service connection.

In reaching this decision, the Board has considered the Veteran's lay statements and testimony. The question, however, is whether the Veteran has right eye vision loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson without the appropriate expertise, the claimant cannot offer a competent opinion on the diagnosis of a disorder manifested by right eye vision loss.

Inasmuch as there is no evidence of functional impairment of earning capacity due to right eye vision loss during the appeal period, the claim is again denied. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

In this case, the evidence shows no right eye vision loss, or functional impairment of earning capacity due to right eye vision loss. To the extent the Veteran has complained of blurry vision, the June 2024 VA examiner related such to the Veteran's refractive error, which as noted above is not a disease or injury within the meaning of applicable legislation. Additionally, while the Veteran has testified to experiencing floaters, the Veteran has also related such to his post-service LASIK surgery. To the extent has separately testified that he has had floaters since the reported right eye injury during service, the Board finds such to be not credible due to the inconsistent statements as to the onset of his symptomatology. See April 2022 Board hearing (stating he has had floaters since service); cf. June 2024 VA examination (relating his floaters as a common residual of LASIK surgery).

Therefore, the criteria for service connection for right eye vision loss are not met. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of evidence, the benefit-of-the-doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

6. Entitlement to service connection for allergic rhinitis (claimed as nasal fracture).

The Veteran contends that he suffered a nasal fracture while coming up from the bottom of a swimming pool when he was hit in the fact by the knee of someone else jumping into the pool. See January 2017 Veteran statement; see also November 2017 VA bones examination.

The Veteran was afforded a VA examination in November 2017. The Veteran reported a history of difficulty breathing through the nose; x-rays revealed no facial fractures or evidence to support existence of a nasal fracture. The diagnosis was allergic rhinitis. The examiner failed to provide any opinion as to the etiology of the Veteran's diagnosed allergic rhinitis.

In June 2023, the Board remanded this matter to provide the Veteran another examination to determine the nature and etiology of his diagnosed allergic rhinitis. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

On June 2024 VA examination, the Veteran denied current symptoms or treatment. The examiner further found there were no subjective or objective findings of allergic rhinitis.

After a review of the June 2024 VA examination, the Board finds that this matter must be remanded again for an addendum opinion whether the Veteran has, or during the pendency of the appeal, has had allergic rhinitis. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that a "current disability" includes a disability present at the time of filing or during the pendency of a claim). Notably, the June 2024 VA examiner did not address the prior diagnosis of allergic rhinitis on November 2017 VA examination.

Outstanding VA treatment records may be pertinent to the claim on appeal, are constructively of record, and must be obtained. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records dated since July 2024.

2. Forward the Veteran's claims file to the June 2024 examiner, if available, to provide an addendum opinion to the determine the nature and etiology of his allergic rhinitis. The examiner should respond to the following:

(a) Provide a diagnosis for allergic rhinitis, if found.

If the Veteran does not now have such disability, please indicate when such disability resolved.

In providing the requested opinion, the examiner should address the November 2017 VA examination that diagnosed allergic rhinitis, and post-service VA treatment records that also diagnose the disability.

(b) If a diagnosis of allergic rhinitis is found, or if the Veteran's allergic rhinitis resolving during the pendency of the appeal, opine as to the likelihood the Veteran's allergic rhinitis had its onset or is otherwise related to
endum opinion to the determine the nature and etiology of his allergic rhinitis. The examiner should respond to the following:

(a) Provide a diagnosis for allergic rhinitis, if found.

If the Veteran does not now have such disability, please indicate when such disability resolved.

The examiner must provide a rationale for all opinions expressed. Failure to provide a rationale will result in the opinion being found to be inadequate.

If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, and whether the inability to provide the opinion is based on the limits of medical knowledge.

N. Rippel

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Marley, 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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