POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The Veteran, an Army Veteran who served from August 1967 to July 2007 (including active duty from August 1967 to August 1970 and reservist service thereafter), appeals multiple decisions from the VA Regional Office. The Veteran was granted service connection for PTSD with a 70% rating effective April 17, 2018, and for chronic fatigue secondary to PTSD and sleep apnea, and for tinnitus. The Board found the Veteran's PTSD symptoms warranted a 70% rating from April 17, 2018, resolving reasonable doubt in his favor. Service connection for chronic fatigue was granted as secondary to PTSD and sleep apnea, based on competent evidence of functional impairment analogous to Diagnostic Code 6354 and the Board finding the evidence in equipoise. Tinnitus was granted service connection based on the Veteran's credible report of noise exposure and onset during service, despite silent service treatment records. The Board remanded claims for increased ratings for PTSD prior to April 17, 2018, and since April 17, 2018, due to inadequate development and failure to issue a supplemental statement of the case. Additionally, claims for bilateral hearing loss, asthma, emphysema, arthritis, Crohn's disease, herniated disc, knee disorders, ankle disorders, hip disorders, gout, migraine headaches with dizziness, urinary tract disorder, chronic pain syndrome, and erectile dysfunction were remanded due to unavailable service treatment records and inadequate notice to the Veteran regarding alternative evidence submission.

Rationale

Holistic analysis of symptoms considered.; Resolution of reasonable doubt in Veteran's favor.; 70% rating warranted from April 17, 2018.

Full Decision Text

Citation Nr: 25002592
Decision Date: 02/24/25	Archive Date: 02/24/25

DOCKET NO. 14-14 885
DATE: February 24, 2025

ORDER

Entitlement to at least an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted effective April 17, 2018.  

Entitlement to service connection for chronic fatigue is granted.

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to an initial rating in excess of 30 percent for PTSD prior to April 17, 2018, is remanded.  

Entitlement to an initial rating in excess of 70 percent for PTSD since April 17, 2018, is remand.  

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for a herniated disc is remanded.

Entitlement to service connection for asthma is remanded.

Entitlement to service connection for emphysema is remanded.

Entitlement to service connection for arthritis is remanded.

Entitlement to service connection for Crohn's disease is remanded.

Entitlement to service connection for a right knee disorder is remanded. 

Entitlement to service connection for a left knee disorder is remanded.

Entitlement to service connection for a right ankle disorder is remanded.

Entitlement to service connection for a left ankle injury disorder is remanded.

Entitlement to service connection for a right hip disorder is remanded.

Entitlement to service connection for a left hip disorder is remanded.

Entitlement to service connection for gout is remanded.

Entitlement to service connection for migraine headaches with dizziness is remanded.

Entitlement to service connection for a urinary tract disorder is remanded.

Entitlement to service connection for a chronic pain syndrome is remanded.

Entitlement to service connection for erectile dysfunction is remanded.

FINDINGS OF FACT

1. Effective from April 17, 2018, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas.

2. The evidence is at least in approximate balance regarding whether the Veteran's chronic fatigue is related to his service-connected PTSD and sleep apnea.  

3. Tinnitus had its onset during service. 

CONCLUSIONS OF LAW

1. Effective from April 17, 2018, the criteria for an initial disability rating of at least 70 percent for PTSD are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. The criteria for service connection for chronic fatigue have been met.  38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.310.

3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 1967 to August 1970, with subsequent reservist service through July 2007.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2012 and October 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).  

The matters on appeal from the September 2012 rating decision were previously before the Board in February 2019, and the matters on appeal from the October 2018 rating decision were previously before the Board in September 2022, when they were remanded for additional development.  The matters have been returned to the Board, and the appeal streams have been merged.  

The February 2019 Board remand included the matters of entitlement to service connection for sleep apnea, diabetes mellitus, renal insufficiency with hypertension, and heart disease.  During the pendency of the appeal, a June 2023 rating decision granted service connection for sleep apnea, effective October 16, 2017.  A July 2023 rating decision granted service connection for type 2 diabetes mellitus, effective November 9, 2010, and service connection for hypertension, effective August 10, 2022.  And an April 2024 rating decision granted service connection for hypertensive heart disease, effective August 10, 2022, and service connection for renal kidney disease status post kidney transplant, effective November 10, 2004
 the matters of entitlement to service connection for sleep apnea, diabetes mellitus, renal insufficiency with hypertension, and heart disease.  During the pendency of the appeal, a June 2023 rating decision granted service connection for sleep apnea, effective October 16, 2017.  A July 2023 rating decision granted service connection for type 2 diabetes mellitus, effective November 9, 2010, and service connection for hypertension, effective August 10, 2022.  And an April 2024 rating decision granted service connection for hypertensive heart disease, effective August 10, 2022, and service connection for renal kidney disease status post kidney transplant, effective November 10, 2004.  As the benefits sought have been granted, the matters are no longer on appeal, and will not be addressed further. 

The September 2022 Board remand included the matter of entitlement to service connection for vision loss.  During the pendency of the appeal, a June 2023 rating decision granted service connection for bilateral eye syndrome (claimed as vision loss), effective October 16, 2017.  As the benefits sought have been granted, the matter is no longer on appeal, and will not be addressed further.

The September 2022 Board remand included the matter of an initial rating in excess of 30 percent for PTSD.  During the pendency of the appeal, a June 2023 rating decision granted an increased 70 percent rating, effective April 12, 2023.  The issue has been characterized to reflect the rating before and after April 12, 2023.  See AB v. Brown, 6 Vet. App. 35 (1995).

In addition, the September 2022 Board remand included the matter of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.  During the pendency of the appeal, a June 2023 rating decision granted TDIU, effective October 16, 2017.  Inasmuch as the award of TDIU was granted effective from October 16, 2017, the date of claim of the underlying claim for PTSD, the award of TDIU effective from October 16, 2017, represents a full grant of the benefit sought with regard to this issue as the entire period currently on appeal has been awarded, it is no longer on appeal, and will not be addressed further.  See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018).

As noted in the prior September 2022 Board remand, the matter of entitlement to service connection for a chronic fatigue disorder comes before the Board as a manifestation of the Veteran's service-connected PTSD pursuant to Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc); Morgan v. Wilkie, 31 Vet. App. 162 (2019).  See also October 2024 Supplemental Statement of the Case.  

Finally, the undersigning Acting Veterans Law Judge notes that the ability to serve as an acting member of the Board may continue on a proceeding for which the individual was designated as an acting member of the Board, notwithstanding the termination of the period of designation of the individual as an acting member.  38 U.S.C. § 7101(c)(1)(B).  Accordingly, the undersigning Acting Veterans Law Judge will proceed with adjudication of the claims on appeal.  

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4. 

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield,
 criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

1. Entitlement to initial staged ratings (in excess of 30 percent prior to April 12, 2023, and in excess of 70 percent since) for PTSD. 

The Veteran seeks a higher rating for PTSD throughout the appeal period.  See, e.g., March 2019 Notice of Disagreement wherein the Veteran urges, "No one can say or provide any evidence that my PTSD symptoms aren't 100% disabling...".  

The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)), which provides for a 30 percent rating when the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  Id. 

A maximum 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. 

Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).  The use of the term "such symptoms as" in 38 C.F.R. § 4.130 indicates that the list of symptoms that follows is non-exhaustive, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436 (2002).  When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms.  Vazquez-Claudio, 713 F.3d at 118.  

It is uncontroverted that the April 2023 VA PTSD Disability Benefits
 that would justify a particular rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436 (2002).  When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms.  Vazquez-Claudio, 713 F.3d at 118.  

It is uncontroverted that the April 2023 VA PTSD Disability Benefits Questionnaire (DBQ) that was the basis for the increased 70 percent rating supports a 70 percent rating for PTSD, with the examiner finding occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, consistent with the criteria for a 70 percent rating.  It was also noted that the examiner found that the Veteran's PTSD symptoms had increased, and it was likely that the loss of his wife in 2019 was the main reason for this increase.  Here, the Board notes that the Veteran reported on the April 2018 VA examination that his wife was still alive, and they had a good relationship.  VA treatment records reflect that the Veteran worked for years with his wife in her hair and nail salon until retiring in 2019.  

Also, the Veteran in the April 2023 examination was noted to be very sad and tearful discussing the situation preceding his wife's death.  

In his March 2019 notice of disagreement, the Veteran reported he felt his PTSD symptoms warranted a 100 percent rating.  

An April 2018 VA PTSD DBQ reflects occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, consistent with a 30 percent rating for PTSD under Diagnostic Code 9411.

Upon review of the record, considering the Veteran's lay statements, treatment records and the latest examiner's observations, the Board resolves reasonable doubt in the Veteran's favor and finds that a 70 percent rating is warranted from the day after the April 2018 VA DBQ, rather than simply from the date of the April 2023 PTSD DBQ.  Accordingly, a 70 percent rating for PTSD is granted from April 17, 2018.  

Here, the Board emphasizes that for increased rating claims, an effective date should not be assigned mechanically based on the date of a diagnosis or a VA examination report.  Rather, all of the facts should be examined to determine when an increase in a veteran's disability can be ascertained.  DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015).  Inasmuch as the April 2023 VA examiner found the Veteran's symptoms had increased, and examination revealed symptomatology more severe than that found on April 2018 examination, resolving any reasonable doubt in the Veteran's favor, the Board finds that an initial rating of at least 70 percent for the Veteran's PTSD is warranted effective from April 17, 2018. 

The matter of entitlement to an initial staged ratings in excess of 30 percent prior to April 17, 2018, and in excess of 70 percent since, are addressed in the remand portion of this decision.  

Service Connection

The Veteran seeks service connection for tinnitus on the basis that it originated in a qualifying period of service due to military noise exposure.  He urges chronic fatigue is related to his service-connected PTSD or sleep apnea.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (
 claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

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); Cf. 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
.R. § 3.310.  Allen v. Brown, 7 Vet. App. 439 (1995); Cf. 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.  

The Board notes that the Veteran's complete service treatment records are not available for review.  See, e.g., December 2022 VA letter.  In such situations, VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit of the doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

2. Entitlement to service connection for chronic fatigue.

The Veteran contends that he has chronic fatigue disorder secondary to his service-connected PTSD and/or sleep apnea.  

As provided above in the Introduction, the Board assumed jurisdiction of the Veteran's claim for chronic fatigue as secondary to service-connected PTSD, consistent with Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc); Morgan v. Wilkie, 31 Vet. App. 162, 167-68 (2019).  

In an April 2023 VA PTSD BBQ, the examiner noted that the Veteran's 'sleep and fatigue' are most likely due to his PTSD, but there is no way to quantify this precisely.  Obstructive sleep apnea could also contribute to the fatigue.  

A June 2023 VA DBQ for fatigue disorder indicated no pathology to warrant a diagnosis.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1110.  Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement.  Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Specifically, in Saunders v. Wilkie, the Federal Circuit found that the term "disability," as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability.  To establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.  Wait v. Wilkie, 33 Vet. App. 8, 17 (2020).

The Board finds competent evidence tending to show that the impairment manifested and described in the April 2023 VA PTSD DBQ as chronic fatigue rises to a level to affect earning capacity, analogous to manifestations found at Diagnostic Code 6354 for chronic fatigue syndrome.  38 C.F.R. § 4.88b.  

As noted above, service connection has been established for PTSD and sleep apnea.

The Board finds, consistent with Spicer, that the evidence shows that the Veteran's chronic fatigue is due to the service-connected PTSD and sleep apnea.  

Here, there is current disability/impairment of chronic fatigue as well as the service-connected primary disabilities of PTSD and sleep ap
. 8, 17 (2020).

The Board finds competent evidence tending to show that the impairment manifested and described in the April 2023 VA PTSD DBQ as chronic fatigue rises to a level to affect earning capacity, analogous to manifestations found at Diagnostic Code 6354 for chronic fatigue syndrome.  38 C.F.R. § 4.88b.  

As noted above, service connection has been established for PTSD and sleep apnea.

The Board finds, consistent with Spicer, that the evidence shows that the Veteran's chronic fatigue is due to the service-connected PTSD and sleep apnea.  

Here, there is current disability/impairment of chronic fatigue as well as the service-connected primary disabilities of PTSD and sleep apnea.

In short, the April 2023 VA examiner opined that the Veteran had chronic fatigue related to PTSD and or sleep apnea.  The Board finds the evidence of record to at least be in equipoise, considering the totality of the record, including Veteran's consistent statements.  38 C.F.R. § 3.310.

Because the competent and credible medical and lay evidence supports the claim, service connection for chronic fatigue is warranted as secondary to service-connected PTSD and sleep apnea.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 

3. Entitlement to service connection for tinnitus.

The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was unit org/supply spec, also listed as ordinance man.  The Board finds there was noise exposure in service consistent with this MOS and thus accepts the occurrence of the in-service injury.

The Veteran urges that he has tinnitus that began during training during active service.  See April 2023 VA audiological examination.  This examination was conducted in accordance with the September 2022 Board remand instructions to ascertain the onset of tinnitus.

The April 2023 VA audiological examination diagnosed tinnitus.

The Board finds the Veteran is competent to report noise exposure and the onset of his tinnitus, and the Board finds his testimony and statements credible.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that "ringing in the ears is capable of lay observation").  

The Board observes there was noise exposure in service.  As noted by the VA audiological examiner in April 2023, the Veteran was exposed to noise in the infantry and from explosive devices, although he also had post-service manufacturing noise exposure.  The examiner at that time found current tinnitus, but found it was not as likely as not related to service as there was no threshold shift in service as to hearing loss.  

As to the Veteran's tinnitus, although his available active duty service treatment records are silent for reports of tinnitus in service, the Veteran is competent to report noise exposure and the onset of tinnitus during service, and the Board finds his account to be credible.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board as finder of fact finds the Veteran's credible report of tinnitus since training in service refers to his active duty service, under the circumstances.  Additionally, the medical evidence shows that the Veteran has been diagnosed as having tinnitus.  Thus, all three elements necessary to establish service connection have been met.  See 38 C.F.R. §§ 3.303, 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015).  Accordingly, service connection for tinnitus is warranted.  

REASONS FOR REMAND

4. Entitlement to an initial rating in excess of 30 percent for PTSD prior to April 17, 2018, is remanded.  

5. Entitlement to an initial rating in excess of 70 percent for PTSD since April 17, 2018, is remanded.  

Historically, service connection and a 30 percent rating for PTSD were granted in an October 2018 rating decision, both effective from an October 16, 2017.  This appeal ensued, and the Board remanded the issue of a rating in excess of 30 percent for PTSD, in its September 2022 decision.

A remand is necessary because although the AOJ issued a June 2023 rating decision granting a 70 percent rating for PTSD, effective from April 
 of 30 percent for PTSD prior to April 17, 2018, is remanded.  

5. Entitlement to an initial rating in excess of 70 percent for PTSD since April 17, 2018, is remanded.  

Historically, service connection and a 30 percent rating for PTSD were granted in an October 2018 rating decision, both effective from an October 16, 2017.  This appeal ensued, and the Board remanded the issue of a rating in excess of 30 percent for PTSD, in its September 2022 decision.

A remand is necessary because although the AOJ issued a June 2023 rating decision granting a 70 percent rating for PTSD, effective from April 12, 2023, it failed to issue a supplemental statement of the case (SSOC) addressing entitlement to a rating in excess of 30 percent for PTSD, for the period from October 16, 2017, to April 11, 2023, and in excess of 70 percent from April 12, 2023, or otherwise adjudicating those aspects of the claim.  The October 2024 SSOC does not address these ratings, nor does the June 2023 Statement of the Case.  However, in view of the above partial grant of benefits in this decision set forth above as to PTSD, on remand, the AOJ should issue an SSOC or otherwise adjudicate those aspects of the increased rating claim for PTSD, to include in excess of 30 percent prior to April 17, 2018, and in excess of 70 percent since April 17, 2018.  

6. Entitlement to service connection for asthma is remanded.

7. Entitlement to service connection for emphysema is remanded.

8. Entitlement to service connection for arthritis is remanded.

9. Entitlement to service connection for Crohn's disease is remanded.

10. Entitlement to service connection for a herniated disc is remanded.

11. Entitlement to service connection for bilateral hearing loss is remanded.

12. Entitlement to service connection for gout is remanded.

13. Entitlement to service connection for migraine headaches with dizziness is remanded.

14. Entitlement to service connection for a urinary tract disorder is remanded.

15. Entitlement to service connection for a chronic pain syndrome is remanded.

16. Entitlement to service connection for erectile dysfunction is remanded.

17. Entitlement to service connection for a right knee disorder is remanded. 

18. Entitlement to service connection for a left knee disorder is remanded.

19. Entitlement to service connection for a right ankle disorder is remanded.

20. Entitlement to service connection for a left ankle injury disorder is remanded.

21. Entitlement to service connection for a right hip disorder is remanded.

22. Entitlement to service connection for a left hip disorder is remanded.

The Board finds that a remand is warranted as to the remaining service connection claims.  

The February 2019 Board remand indicated that the service connection claims were being remanded in order to obtain service treatment records for the Veteran's considerable Army Reserve service.  For each of the service connection claims on appeal, the Veteran asserts that he suffers from the condition and that it had its onset during his "thirty years" of service.  Clearly, the argument for service connection includes his many years of Army Reserve duty.

Here, the February 2019 Board remand directive indicated in pertinent part: 

2. Contact the National Personnel Records Center, the appropriate service entity and/or other appropriate entity and request that it (1) verify the Veteran's complete periods of active duty, ACDUTRA and INACDUTRA with the Army Reserve and (2) forward all available service treatment records and SPR snot already of record associated with such duty for incorporation into the record.

3. If the records are not available, the RO must advise the Veteran and seek any alternative records documenting service.  

The September 2022 Board remand incorporated the above records search outlined in the February 2019 remand by reference.  

The RO sent the Veteran a letter in December 2022 indicating it determined that service treatment records and service personnel records cannot be located and therefore are unavailable for review.  All efforts to obtain the needed information was exhausted, and based on these facts, the RO determined that further attempts to obtain the records would be futile.  He was told his claim file contains documentation of the written and telephonic efforts made to attempt to obtain these records.  The letter then requested that the Veteran submit, "Any available copies of your Service Treatment Records and Service Personnel Records.  Any other relevant evidence of information that you think will support your claim."  

A May 2023 letter asked the Veteran to, "Please provide any military personnel records
 reference.  

The RO sent the Veteran a letter in December 2022 indicating it determined that service treatment records and service personnel records cannot be located and therefore are unavailable for review.  All efforts to obtain the needed information was exhausted, and based on these facts, the RO determined that further attempts to obtain the records would be futile.  He was told his claim file contains documentation of the written and telephonic efforts made to attempt to obtain these records.  The letter then requested that the Veteran submit, "Any available copies of your Service Treatment Records and Service Personnel Records.  Any other relevant evidence of information that you think will support your claim."  

A May 2023 letter asked the Veteran to, "Please provide any military personnel records in your possession.  To include any records associated with your Unit information while serving in Korea."  

The October 2024 SSOC which addressed the issues from the September 2022 Board remand indicated that as the RO informed him in a previous letter, they determined that his service treatment records could not be located and therefore were unavailable for review.  If VA subsequently obtains the records, it will reconsider the claims as though the records were in VA custody at the time VA originally decided the claim. 

The Board again notes that VA has a heightened duty to consider carefully the Veteran's available medical record and lay statements when service treatment records are unavailable.  See Cromer v. Nicholson, 19 Vet. App. 215 (2005); see also Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005).  

While there are multiple VA examinations of record resulting from the February 2019 and September 2022 remands, the Board notes that it is unclear whether any of the Veteran's claimed disabilities are related to or had their onset in service in light of the missing service treatment records.  As such, on remand, the Board will invite the Veteran to submit lay evidence that corroborates his account of having recurrent problems with these alleged conditions since service.  

With regard to whether there is corroborating lay evidence, the Board observes that in Washington v. Nicholson, 19 Vet. App. 362, 370 (2005), the Court noted that in Dixon v. Derwinski, 3 Vet. App. 261 (1992), the Court had held that when VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources.  Id. at 263.  

?

Here, VA did not advise the Veteran adequately as to the alternative forms of information and evidence that he could use to establish his claims.  In particular, as in Washington, VA failed to advise the Veteran that he could submit corroboration in the form of "buddy statements" from fellow service members as to the occurrence of his in-service problems related to the above claims, as well as post-service lay evidence that relates to whether the Veteran exhibited any problems associated with these conditions following his discharge from service.  Id.; see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004).

The Board notes that the RO was instructed in the February 2019 remand to advise the Veteran and seek any alternative records documenting service and finds there was not substantial compliance with the Board's February 2019 and September 2022 remands.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).

The matters are REMANDED for the following action:

1. Issue an SSOC on the matters of entitlement to initial increased staged ratings in excess of 30 percent prior to April 17, 2018, and in excess of 70 percent since April 17, 2018.   

2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral hearing loss, herniated disc, asthma, emphysema, arthritis, Crohn's disease, right and left knee, right and left ankle, and right and left hip problems, gout, migraine headaches with dizziness, urinary tract disorder, chronic pain syndrome and/or erectile dysfunction problems.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3. Conduct any other development deemed necessary thereafter.  

 

 

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Rippel, Counsel

The Board's decision in this
 individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral hearing loss, herniated disc, asthma, emphysema, arthritis, Crohn's disease, right and left knee, right and left ankle, and right and left hip problems, gout, migraine headaches with dizziness, urinary tract disorder, chronic pain syndrome and/or erectile dysfunction problems.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3. Conduct any other development deemed necessary thereafter.  

 

 

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Rippel, 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.