SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, who served in the United States Marine Corps from February 1973 to August 1975, appeals the denial of service connection for obstructive sleep apnea. The Veteran also contends that his sleep apnea is due to exposure to contaminated water at Camp Lejeune or is secondary to a service-connected condition. The Board found the initial VA examination inadequate because it focused on diagnostic methodology rather than addressing the nexus to service or reconciling conflicting evidence. Subsequent opinions were also found inadequate for failing to address specific causal links or the full scope of the evidence, including lay statements and private treatment records. The Board noted the Veteran's in-service complaints of snoring and breathing problems, a December 1998 private treatment record noting obstructive sleep apnea, and lay statements from his brother and wife corroborating the onset and worsening of sleep issues post-service. A May 2025 VA addendum opinion found the Veteran's in-service complaints of snoring and breathing problems were at least as likely as not the initial manifesting symptoms of his later-diagnosed sleep apnea. Considering this favorable finding in conjunction with the lay evidence and the lack of contradictory probative medical evidence, the Board found the obstructive sleep apnea to be most likely related to an onset in service. Service connection for obstructive sleep apnea was granted. The case also involves remands for increased ratings for right knee degenerative joint disease and bilateral hearing loss, and for TDIU entitlement.

Rationale

Favorable VA opinion finding in-service complaints as initial symptoms; Lay evidence corroborating onset and worsening of symptoms post-service; Lack of contradictory probative medical evidence

Full Decision Text

Citation Nr: 25012167
Decision Date: 09/25/25	Archive Date: 09/25/25

DOCKET NO. 18-33 944
DATE: September 25, 2025

ORDER

Service connection for obstructive sleep apnea is granted.  

REMANDED

Entitlement to an increased rating in excess of 10 percent for right knee degenerative joint disease status post meniscectomy is remanded.  

Entitlement to a compensable rating prior to March 29, 2021 for service connected bilateral hearing loss is remanded.  

Entitlement to an increased rating in excess of 20 percent since March 29, 2021, for service connected bilateral hearing loss is remanded.

Entitlement to a total disability rating based on individual unemployment (TDIU) due to service connected disabilities prior to February 7, 2017 is remanded.  

?

FINDING OF FACT

Resolving all doubt in the Veteran's favor, the evidence is in relative equipoise as to whether his currently diagnosed obstructive sleep apnea is directly related to service.  

CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from February 1973 to August 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran appeared at a Board hearing and provided testimony before the undersigned Acting Veterans Law Judge in February 2020.  A transcript of the hearing has been associated with the claims file.  

Service connection for obstructive sleep apnea is granted.  

The Veteran contends that his claimed sleep apnea is due to service, including as due to his exposure to the contaminated water supply at Camp Lejeune, or alternatively, as secondary to a service connected condition.  

A.  Applicable Law

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  

In order to establish service connection for a claimed disability on a direct basis, there must be competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

Service connection may also be established by evidencing a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required.  Id.  The provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may also be granted for any disease diagnosed after discharge, when the evidence establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  

In addition to direct service connection, a disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) resulting from or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310.  Any medical opinion which addresses secondary service connection must include an aggravation opinion.  

VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App
 aggravated by an already service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310.  Any medical opinion which addresses secondary service connection must include an aggravation opinion.  

VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, there must be a showing that the evidence is not in approximate balance and is persuasively against the Veteran's claim.  See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F. 4th 776, 781 (Fed. Cir. 2021).  

B.  Discussion 

Here, the record reflects that a December 2023 VA memorandum indicates that the Veteran's exposure to the contaminated water supply at Camp Lejeune has been conceded.  The Veteran has also submitted literature discussing sleep apnea and occupational exposure to organic solvents as a cause for sleep apnea, as reflected in a June 2011 submission.  

The Veteran is also service connected for posttraumatic stress disorder (PTSD), bilateral knee conditions, bilateral shoulder conditions, hearing loss, tinnitus and scars.  Further, in a January 2014 statement, the Veteran's wife, since June 1985, stated that the Veteran has constant struggles with nightmares, snoring and restlessness at night.  

Finally, in a December 2015 statement, the Veteran said that it is his belief that his sleep apnea started during his annual training on June 22, 1989, when he went to sick call and complained about an ear infection and problem with sleeping.  The Veteran explained that he entered the National Guard in 1986 and at 200 pounds.  The Veteran said that he complained many times of waking up tired, snoring, choking a nigh and he was always referred to his primary doctor.  The Veteran said that after a February 2022 surgery for obstructive sleep apnea, he continued to have problems with sleeping at night.  The Veteran said that in June 1991, while at annual training, he injured his right knee while performing physical training to which he surgery.  The Veteran explained that after this incident, he could not perform physical training and could barely walk.  The Veteran further said that then, in June 2004, while on military annual training, he tore his right shoulder rotator cuff by lifting gun shell.  The Veteran explained that he then gained a lot of weight during his last four years in the National Guard.  To support this argument, the Veteran submitted literature in February 2020 discussing the physical inactivity associated with sleep apnea.  

In a January 2020 statement, the Veteran's brother, who identified himself as a doctor, stated that the Veteran had no problems with snoring or sleeping when he enlisted in service in 1973.  Dr. P.R. said that, after the Veteran completed his service, he developed a problem sleeping along with very loud snoring which has continued and worsened.  

Turning to the medical evidence of record, the Veteran's August 1973 entrance examinations are unremarkable as to reflect a report of any defects.  A September 1973 service treatment record (STR) reflects that the Veteran reported a problem breathing through his nose, runny nose and eyes watering.  An impression of hay fever was noted.  The July 1975 report of medical examination for release from active duty is unremarkable to report any defects.  

A December 1997 private treatment record (during the Veteran's tour for the National Guard from 1986 to 2005) notes the Veteran's report of chest cold and "sleep chokes."  In a June 2012 statement, the Veteran said that he was diagnosed with sleep apnea in 1998.  An Apri 1998 private treatment record notes that the Veteran has had bronchitis for two weeks, it is not getting better, headaches, scratchy throat and that he experiences a choking sensation and snores at night when he lays down.  Testing and management was ordered for sleep apnea.  A December 1998 private treatment record notes that the Veteran has evidence of obstructive sleep apnea.  Physical examination revealed bilateral extensive cerumen impactions which were removed and a right serous otitis media with evidence of a right conductive hearing
 Veteran's report of chest cold and "sleep chokes."  In a June 2012 statement, the Veteran said that he was diagnosed with sleep apnea in 1998.  An Apri 1998 private treatment record notes that the Veteran has had bronchitis for two weeks, it is not getting better, headaches, scratchy throat and that he experiences a choking sensation and snores at night when he lays down.  Testing and management was ordered for sleep apnea.  A December 1998 private treatment record notes that the Veteran has evidence of obstructive sleep apnea.  Physical examination revealed bilateral extensive cerumen impactions which were removed and a right serous otitis media with evidence of a right conductive hearing loss.  A December 1999 private treatment record shows a referral for the diagnosis of sleep apnea.  

A January 2011 private diagnosis sleep study report reflects a diagnosis of obstructive sleep apnea.  The record reflects note that the Veteran had a diagnostic study performed more than 10 years ago but those results are not available.  The record further notes that the Veteran snores, has witnessed apneic episodes in sleep, feels tired and sleepy during the day and reports feeling depressed with poor memory and wakes up with dry mouth.  The record further notes that the Veteran's medical history is significant for hypertension and he consumes a moderate amount of alcohol and is a non-smoker.  

Thus, in light of the evidence above articulating the contentions with lay statements of an event, injury or illness and the diagnosis of obstructive sleep apnea, the Board finds that the first two service connection requirements have been satisfied.  

The remaining question is whether a nexus exists in the record of evidence.  

Turning to the medical opinions of record, a January 2016 private sleep apnea disability benefits questionnaire (DBQ) reflects a confirmed diagnosis of obstructive sleep apnea.  The private examiner noted that the Veteran reported a history of injury to his right knee and right shoulder resulting in low physical activity and weight gain.  The private examiner marked an option indicating that the condition was aggravated by military service.  The examiner did not provide any rationale.  However, the examiner also noted that the right knee and right shoulder disabilities resulted in decreased physical activity and weight gain.  

The Veteran underwent a VA sleep apnea examination in June 2021 at which time a diagnosis of obstructive sleep apnea was confirmed.  The examiner opined that the claimed sleep apnea condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, including complaints of snoring and coughing, the exposure to the contaminated water supply at Camp Lejeune or weight gain.  The examiner rationalized that while STRs indicate complaints of snoring and coughing, the STRs failed to show evidence of the diagnosis or treatment for sleep apnea or diagnostic polysomnography while on active duty.  The examiner explained that observed snoring, cough, unrestful sleep, gasping, trouble sleeping, shallow breathing and insomnia are not pathognomonic for sleep apnea.  The examiner indicated that sleep apnea is diagnosed by polysomnography, apnea/hypoxia index (AHI or PRDI) is the diagnostic standard for obstructive sleep apnea.  The examiner explained that an AHI or PRDI greater than 5 indicates sleep apnea and while people often will have episodes of gasping or brief times of stopping breathing, AHI less than 5/hour or PRDI less than 15/ hour is considered normal. 

Here, the Board finds that the opinion is inadequate.  Significantly, the examiner essentially only provides the methodology to diagnose sleep apnea, obstructive sleep apnea in particular, to conclude that although there are reports of snoring and coughing in service, the Veteran was not actually diagnosed with sleep apnea.  However, the diagnosis does not have to be made in service to be service connected.  Service connection may also be granted for any disease diagnosed after discharge, when the evidence establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  Here, the examiner does not actually provide analysis to discuss whether the condition was incurred in service.  Thus, the direct service connection opinion is inadequate.  

The examiner opined that the Veteran's claimed sleep apnea condition is less likely than not proximately due to or the result of Veteran's service connected hearing loss condition.  The examiner rationalized that the conditions of obstructive sleep apnea and bilateral hearing loss are not medically related and that a thorough review of medical literature failed to demonstrate a causal relationship. The examiner explained that obstructive sleep apnea is a separate entity entirely from the bilateral hearing loss and unrelated to it.  The examiner further opined that the Veteran's obstructive sleep apnea was less likely than
.303(d).  Here, the examiner does not actually provide analysis to discuss whether the condition was incurred in service.  Thus, the direct service connection opinion is inadequate.  

The examiner opined that the Veteran's claimed sleep apnea condition is less likely than not proximately due to or the result of Veteran's service connected hearing loss condition.  The examiner rationalized that the conditions of obstructive sleep apnea and bilateral hearing loss are not medically related and that a thorough review of medical literature failed to demonstrate a causal relationship. The examiner explained that obstructive sleep apnea is a separate entity entirely from the bilateral hearing loss and unrelated to it.  The examiner further opined that the Veteran's obstructive sleep apnea was less likely than not aggravated beyond its natural progression by the service connected hearing loss.  The examiner rationalized that the STRs and evidence of record, coupled with objective findings during examination does not clinically support findings for the Veteran's claim of aggravation as the contention is subjective only.  The examiner then provided unfavorable opinion as to secondary service connection claims for the Veteran's tinnitus, shoulders and knee condition, applying nearly same rationale.  

Here, the Board finds that the opinions are inadequate.  While the examiner indicates that review of the record does not support a relationship, the examiner does not actually address the record of evidence.  In this case, a December 1998 private treatment record, discussed above, notes that the Veteran has evidence of obstructive sleep apnea and physical examination revealed bilateral extensive cerumen impactions which were removed and a right serous otitis media with evidence of a right conductive hearing loss.  Such evidence was not reconciled with the examiners rationale.  Further, the examiner fails to address the Veteran's lay statements regarding his right shoulder and right knee.  However, the Board notes that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C §1154.  Thus, the Board finds that the secondary service connection opinions are inadequate.  

In a May 2025 addendum opinion, a VA examiner provided an unfavorable secondary service connection as to whether the Veteran's claimed obstructive sleep apnea is secondary to his service connected shoulder and knee conditions, including whether obesity served as an intermediary step.  However, while the examiner indicated that obesity often arises from a diet high in calorie-dense foods, including those rich in fats and sugars, combined with insufficient physical activity to expend that energy, the examiner did not address whether the Veteran's service connected shoulder and knee condition resulted in insufficient physical activity output to result in obesity.  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  Moreover, the opinion does not include an aggravation opinion.  See Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310.  Hence, the Board finds such opinion to be inadequate.  

Further, while the examiner provided an unfavorable opinion as to whether the Veteran's claimed obstructive sleep apnea is related to his conceded toxic exposure risk activities (TERA) including exposure to the contaminated water supply at Camp Lejeune, such opinion does not directly address whether the sleep apnea was caused by the contaminated water supply at Camp Lejeune.  Instead, the opinion discusses the Veteran's particular risk factors while not addressing the TERA beyond note of there being no medical or scientific evidence is available that indicates a relationship between the development of the condition at issue and the TERA, which in itself is conclusive.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  

The examiner further opined that the claimed sleep apnea conditions is at least as likely as not proximately due to or the result of the Veteran's service connected condition.  However, the examiner rationalized that the medical record indicates that the Veteran has a history of obstructive sleep apnea.  The examiner explained that despite treatment with a CPAP machine, the Veteran experienced significant compliance issues.  The examiner found that a subsequent laryngoscopy revealed a redundant soft palate and an enlarged base of the tongue and additionally, there was evidence of enlarged tonsils, while the anterior-posterior pharyngeal diameter was reported as normal or slightly diminished.  The examiner expressed that a nasal examination demonstrated a septal deviation, although airflow was deemed adequate.  The examiner surmised that considering the symptomatic presentation, examination findings
 as not proximately due to or the result of the Veteran's service connected condition.  However, the examiner rationalized that the medical record indicates that the Veteran has a history of obstructive sleep apnea.  The examiner explained that despite treatment with a CPAP machine, the Veteran experienced significant compliance issues.  The examiner found that a subsequent laryngoscopy revealed a redundant soft palate and an enlarged base of the tongue and additionally, there was evidence of enlarged tonsils, while the anterior-posterior pharyngeal diameter was reported as normal or slightly diminished.  The examiner expressed that a nasal examination demonstrated a septal deviation, although airflow was deemed adequate.  The examiner surmised that considering the symptomatic presentation, examination findings, and the Veteran's inability to tolerate CPAP therapy, the provider recommended surgical intervention as necessary.  The examiner indicated that, furthermore, the provider emphasized that the Veteran would substantially benefit from a comprehensive diet and weight management program.  The examiner remarked that as a result, the Veteran is slated to undergo a tonsillectomy and uvulopalatopharyngoplasty to optimize his sleep condition.  

Here, the examiner did not identify the service connected condition.  However, in a June 2025 addendum opinion, the examiner was notified that the Veteran is not service connected for a septal deviation.  The examiner then opined that there is not enough evidence to suggest that a deviated septum causes obstructive sleep apnea.  The examiner indicated that the study also showed some limitations in the study.  The examiner found that the study also stated an increase of obstructive sleep apnea with deviated septum but also noted that this phenomenon was more pronounced with increasing body mass index (BMI) and decreased significantly after septoplasty.  The examiner explained that a deviated septum does not directly initiate obstructive sleep apnea; however, it can contribute to the onset or exacerbation of obstructive sleep apnea symptoms.  The examiner explained that by impeding airflow through the nasal passages, a deviated septum may lead to nocturnal hypoventilation and increased reliance on oral breathing during sleep.  The examiner indicated that this alteration in respiratory mechanics can aggravate snoring and elevate the susceptibility to apneic events, thereby compounding the severity of sleep-disordered breathing.  

Here, the Veteran is not service connected for septal deviation.  

Yet, of note, the May 2025 VA examiner opined that the claimed sleep apnea condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including potential exposures to asbestos and contaminants at Camp Lejeune during service.  The examiner rationalized that while asbestos exposure at Camp Lejeune can lead to serious health problems, including cancers like mesothelioma, it is not directly linked to obstructive sleep apnea.  The examiner found that there is no evidence found that causally linked obstructive sleep apnea to asbestos exposure and exposure related to Camp Lejeune.  

However, the examiner was asked to reconcile the conflicting medical evidence of whether the Veteran's in-service complaints of snoring and breathing problems were at least as likely as not the initial manifesting symptoms of his later-diagnosed sleep apnea.  The examiner responded with a finding that, yes, the Veteran's in-service complaints of snoring and breathing problems were at least as likely as not the initial manifesting symptoms of his later diagnosed sleep apnea.  The examiner explained that snoring may serve as an initial indicator of potential obstructive sleep apnea, but it is crucial to note that not all individuals who snore will develop obstructive sleep apnea.  The examiner expressed that the characteristic loudness of snoring, especially when accompanied by observable pauses in breathing or gasping for breath, often points towards the likelihood of apneas, which are integral to the diagnostic criteria for obstructive sleep apnea.  The examiner indicated that loud snoring, particularly when paired with apneic episodes or gasping, can indicate the presence of obstructive sleep apnea.  The examiner rationalized that, however, the manifestation of snoring alone is not a definitive marker for obstructive sleep apnea.  The examiner explained that this condition is defined by recurrent disruptions in respiratory airflow during sleep due to upper airway obstruction.  

Here, on its face, the examiner appears to directly provide a negative opinion as to whether the Veteran's condition is related to service.  However, ultimately, the examiner finds that the Veteran's in-service complaints of snoring and breathing problems were at least as likely as not the initial manifesting symptoms of his later diagnosed sleep apnea.  This is taken in light of the January 2016 private examiners indication that the condition was aggravated by military service.  Here, while there is no single rationale, the totality of the record of evidence indicates that
 is not a definitive marker for obstructive sleep apnea.  The examiner explained that this condition is defined by recurrent disruptions in respiratory airflow during sleep due to upper airway obstruction.  

Here, on its face, the examiner appears to directly provide a negative opinion as to whether the Veteran's condition is related to service.  However, ultimately, the examiner finds that the Veteran's in-service complaints of snoring and breathing problems were at least as likely as not the initial manifesting symptoms of his later diagnosed sleep apnea.  This is taken in light of the January 2016 private examiners indication that the condition was aggravated by military service.  Here, while there is no single rationale, the totality of the record of evidence indicates that the Veteran's brother Dr. P.R. said that the Veteran did not have sleep or snoring issues at the time of entering service.  In September 1973 STR, the Veteran reported a problem breathing through his nose, runny nose and eyes watering.  Dr. P.R. said that, after the Veteran completed his service, he developed a problem sleeping along with very loud snoring which has continued and worsened.  In December 1997, he reported choking in his sleep and was diagnosed with obstructive sleep apnea in 1998.  As articulated, the Veteran's brother has stated the Veteran's snoring and problem sleeping have continued and worsened since service.  

Hence, while the January 2016 favorable indication and the May 2025 favorable finding that the Veteran's complaints of snoring and breathing problems were at least as likely as not the initial manifesting symptoms of his later diagnosed sleep apnea are not exhaustive to discuss the complete evidence, including the detailed medical methodology relied upon, in conjunction with the lay evidence of record, these findings sufficiently relays the examiners professional medical analysis on the subject.  Barr v. Nicholson, 21?Vet. App.?303, 311 (2007).  The lay statements explain the date range for the Veteran's manifestation of symptoms of obstructive sleep apnea as relating back to service as the May 2025 examiner noted indicated.  Accordingly, in light of the complete evidence of record, the complete evidence of record adequately concludes that the obstructive sleep apnea is most likely related to an onset in service.  The totality of the evidence contains the factually accurate, fully articulated, sound reasoning for this conclusion that contributes probative value to a medical opinion.  Nieves-Rodriguez, 22 Vet. App.at 301.  There is no existing, probative medical opinion in the record to contradict the finding of direct causation and the Board has no basis to contradict the conclusion.  See Colvin v. Derwinski, 1?Vet. App.?171, 175 (1991).  Thus, the Board affords the favorable findings significant probative value.  Id.  

Thus, after the affording the Veteran the benefit of the doubt, the Board finds that the competent and credible evidence is in relative equipoise evidence as to whether the Veteran's obstructive sleep apnea, is otherwise etiologically related to active-duty service.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.  Thus, service connection for obstructive sleep apnea is warranted.  

REASONS FOR REMAND

1. Entitlement to an increased rating in excess of 10 percent for right knee degenerative joint disease status post meniscectomy is remanded.  

2. Entitlement to a compensable rating prior to March 29, 2021 for service connected bilateral hearing loss is remanded.  

3. Entitlement to an increased rating in excess of 20 percent since March 29, 2021, for service connected bilateral hearing loss is remanded.  

In a May 2023 Board decision, the Board denied the Veteran's claim of entitlement to an increased rating in excess of 10 percent for the service connected right knee disability and entitlement to a compensable rating prior to March 29, 2021, and an increased rating in excess of 20 percent thereafter for service connected bilateral hearing loss. 

The Veteran appealed the denial of the issues to the Court of Appeals for Veteran's Claims (Court).  In January 2024, the Court granted a Joint Motion for Remand (JMR), in which the parties agreed that the Board failed to 1) ensure compliance with musculoskeletal testing requirements for the right knee and 2) provide an adequate statement of reasons and bases assessing the Veteran's hearing loss and any possible associated ear problems.  The matter was then remanded by the Board in November 2024 with directives to address the JMR.  The case has since returned to the Board
 to March 29, 2021, and an increased rating in excess of 20 percent thereafter for service connected bilateral hearing loss. 

The Veteran appealed the denial of the issues to the Court of Appeals for Veteran's Claims (Court).  In January 2024, the Court granted a Joint Motion for Remand (JMR), in which the parties agreed that the Board failed to 1) ensure compliance with musculoskeletal testing requirements for the right knee and 2) provide an adequate statement of reasons and bases assessing the Veteran's hearing loss and any possible associated ear problems.  The matter was then remanded by the Board in November 2024 with directives to address the JMR.  The case has since returned to the Board.  

The Board notes that in the Legacy appellate review system, after remand, completing directive action and taking any other necessary development, the claim must be readjudicated.  If the claim remains denied, a Supplemental Statement of the Case (SSOC) must be provided to the Veteran and current representative.  

Here, RO has not issued an SSOC.  An SSOC was last issued in June 2022.  However, it appears the RO is continuing to develop evidence regarding these issues, including VA examinations conducted in September 2025.  The Board therefore finds that the issues were returned to the Board prematurely for final adjudication.  Remand is needed to ensure that the RO may have the opportunity to substantially comply with all prior Board remand instructions.  

4. Entitlement to a TDIU rating due to service connected disabilities prior to February 7, 2017 is remanded.  

Here, a May 2018 rating decision awarded the Veteran entitlement to a TDIU rating from December 11, 2017.  At that time, the Veteran was in receipt of a 100 percent combined disability evaluation rating from February 7, 2017 but a 90 percent combined disability evaluation rating from April 1, 2018.  In other words, the Veteran was not in receipt of a total disability rating from April 1, 2018 to December 10, 2017.  

However, since the time of the May 2018 rating decision, the Veteran has been awarded service connection for new conditions and increased ratings for service connected conditions which has increased the Veteran's combined disability evaluation rating to be 100 percent continuous from February 7, 2017.  

Accordingly, the Board finds that the Veteran's claim for increased ratings is inextricably intertwined with the issue of entitlement to a TDIU rating due to service connected disabilities prior to February 7, 2017.  Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  

The matters are REMANDED for the following action:

Complete all prior remand directives, then issue a supplemental statement of the case (SSOC) adjudicating the issues on appeal with consideration of all additional evidence added to the record since the June 2022.  

 

 

Corey Bosely

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Alli, Q.

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.