Case A25104577

S. SCHICK · 2025 · Case ID: A25104577

MIXED

Summary

The veteran, who served in the U.S. Army from February 2010 to September 2016, appeals the denial of service connection for bilateral hearing loss, tinnitus, PTSD with TBI, and post-concussive headaches, as well as a claim for Gulf War syndrome. The Board granted earlier effective dates for the service-connected conditions of bilateral hearing loss, tinnitus, PTSD with TBI, and post-concussive headaches, establishing these dates to January 30, 2023. The Board denied service connection for Gulf War syndrome due to a lack of competent evidence of a current diagnosis and failure to provide specific symptoms beyond those already service-connected. For bilateral hearing loss, the Board found the veteran's audiometric testing results supported a noncompensable rating, denying a higher rating. For tinnitus, the Board affirmed the maximum 10 percent rating, stating no higher rating was legally permissible. The Board granted a 70 percent rating for PTSD with TBI, citing the veteran's suicidal ideation, anxiety, alcohol use for self-medication, nightmares, and interpersonal difficulties, but found the symptoms did not rise to total occupational and social impairment. For post-concussive headaches, the Board granted a 50 percent rating, finding the veteran's frequent migraine attacks, requiring him to rest for 45 minutes to an hour multiple times a week, met the criteria for severe economic inadaptability. The Board remanded claims for low back disability, left knee disability, right knee disability, sleep disability (including sleep apnea and insomnia), and TDIU due to the inadequacy of VA examinations and the need for further development of private medical records and imaging.

Rationale

Audiometric testing showed noncompensable rating; No evidence of invalid test or worse hearing; Lay statements considered but not persuasive over objective testing

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

240827-469036

Full Decision Text

Citation Nr: A25104577
Decision Date: 12/04/25 Archive Date: 12/04/25

DOCKET NO. 240827-469036
DATE: December 4, 2025

ORDER

Entitlement to an effective date of January 30, 2023, but no earlier for the grant of service connection for bilateral hearing loss is granted.

Entitlement an effective date of January 30, 2023, but no earlier for the grant of service connection for tinnitus is granted.

Entitlement to an effective date of January 30, 2023, but no earlier for the grant of service connection for acquired psychiatric condition including post-traumatic stress disorder (PTSD) associated with traumatic brain injury (TBI) is granted.

Entitlement to an effective date of January 30, 2023, but no earlier, for the grant od service connection for post-concussive headaches is granted.

Entitlement to service connection for gulf war syndrome is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

For the entire period on appeal, entitlement to an increased rating of 70 percent, but no higher, for PTSD with TBI is granted.

For the entire period on appeal, entitlement to a rating of 50 percent, but no higher for post-concussive headaches is granted.

REMANDED

Entitlement to service connection for a low back disability is remanded.

Entitlement to service connection for left knee disability is remanded.

Entitlement to service connection for right knee disability is remanded.

Entitlement to service connection for a sleep disability including sleep apnea, fatigue, and insomnia is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded.

FINDINGS OF FACT

1. The Veteran filed a claim for service connection for bilateral hearing loss, tinnitus, PTSD, and post-concussive headaches in a VA 21-526EZ application on January 19, 2024.

2. Within one year prior to the January 19, 2024, VA 21-526EZ application, and with no other intervening applications, the Veteran filed an intent to file on January 30, 2023.

3. The evidence of record persuasively weighs against finding that the Veteran has had a claimed disability or any related disability of "gulf war syndrome" at any time during or approximate to the pendency of the claim.

4. The Veteran's audiometric testing shows that his hearing is at a noncompensable rating level, with testing showing hearing loss manifested at a Level "I" impairment, in the right ear, and a Level "I" impairment, in the left ear.

5. The Veteran's tinnitus has been assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260.

6. The Veteran's PTSD-TBI manifested with symptoms most closely analogous to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, including some suicidal thoughts; however, at no point during these periods did the condition manifest total occupational and social impairment.

7. The Veteran experienced frequent prostrating migraine headaches productive of severe economic inadaptability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an earlier effective date of January 30, 2023, for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400.

2. The criteria for entitlement to an earlier effective date of January 30, 2023, for service connection for tinnitus have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400.

3. The criteria for entitlement to an earlier effective date of January 30, 2023, for service connection for PTSD with TBI have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400.

4. The criteria for entitlement to an earlier effective date of January 30, 2023, for service connection for posts concussive headaches have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400.

5. The criteria for service connection for "gulf war syndrome" are not met
3. The criteria for entitlement to an earlier effective date of January 30, 2023, for service connection for PTSD with TBI have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400.

5. The criteria for service connection for "gulf war syndrome" are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

6. The criteria for a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.385, 4.7, 4.85, 4.86.

7. There is no legal basis for the assignment of a disability evaluation higher than 10 percent for tinnitus. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 3.102, 4.1, 4.87, Diagnostic Code 6260.

8. The criteria for a disability rating of 70 percent, but no higher, for PTSD and TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411.

9. The criteria for a disability rating of 50 percent for post concussive headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100, 8045.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service with the United States Army from February 2010 to September 2016.

In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the March 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the above-listed claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Board also finds that TDIU was raised as part and parcel of the Veteran's claim, and the issue is properly before the Board. See Harper v Wilkie, 30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009).

Earlier effective dates

Generally, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection.
The Board also finds that TDIU was raised as part and parcel of the Veteran's claim, and the issue is properly before the Board. See Harper v Wilkie, 30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009).

Earlier effective dates

Generally, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).

VA regulations also allow claimants to submit a notice of "intent to file" a claim. This provides claimants with an opportunity to establish an effective date before their completed claims are submitted, provided that the completed claim is received within one year of the notice of intent to file a claim. 38 C.F.R. § 3.155(b).

1. Entitlement to an earlier effective date for bilateral hearing loss

2. Entitlement to an earlier effective date for tinnitus

3. Entitlement to an earlier effective date for acquired psychiatric condition including PTSD

4. Entitlement to an earlier effective date for post-concussive headaches

Here, the Veteran filed a completed application for the above claims in January 2024. See VA 21-526EZ received January 2024.

Considering the year prior to the completed application, there was only one intent to file, which was submitted on January 30, 2023.

While there was an earlier intent to file on record, the earlier February 2022 intent to file was not submitted within a year of the application for the above claims. As such, it is not relevant to the effective date of these claims.

Therefore, the Board finds that the earliest effective date applicable to the Veteran's claim is the intent to file dated January 30, 2023. The Board grants an earlier effective date of January 30, 2023, for the Veteran's claim for service connection for tinnitus, acquired mental health condition, bilateral hearing loss, and post-concussive headaches.

Service Connection

Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf War Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b).

The Board notes that Congress revised 38 U.S.C. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other
disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). For purposes of 38 C.F.R. § 3.317, the term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained. Id. The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4) (providing that the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest).

Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007).

The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).

Entitlement to service connection for "gulf war syndrome"

The Veteran has appealed a generic claim for "gulf war syndrome." See VA Form 10182, Notice of Disagreement, received August 2024.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v
. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

Entitlement to service connection for "gulf war syndrome"

The Veteran has appealed a generic claim for "gulf war syndrome." See VA Form 10182, Notice of Disagreement, received August 2024.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Veteran has received service connection for several conditions related to his service, including active-duty service in Afghanistan. He has received service connection for post-concussive headaches, tinnitus, hearing loss, and PTSD associated with TBI.

The Veteran did not make a claim for a particular symptom or condition, not otherwise claimed, related to his service in the Gulf War. For example, he did not provide lay statements to explain what symptoms he believes are his "gulf war syndrome" apart from symptoms already service connected or separately claimed. The record contains no other lay statement to explain in a more detailed manner what he believes his "gulf war syndrome" encompasses.

There is a remand for symptoms of fatigue or issues with sleep above. He has already been connected for various mental health symptoms, and he has some physical conditions under remand.

The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); however, the Veteran has not suggested that he suffers from pain or other symptomatology of such severity involving "gulf war syndrome" not already addressed in another claim or separately under appeal. He has not provided any statements or lay assertions of such a nature.

As there is no competent evidence of a current diagnosis of "gulf war syndrome," there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Veteran received a Gulf War examination. See C&P Examination received March 2024. The examiner opined that the Veteran had the diagnosis of post concussive headaches and post concussive syndrome. The examiner acknowledged this condition but did not find that it met the criteria of gulf war syndrome. However, the condition was otherwise service connected.

The Board finds that this opinion is competent, credible, and gives it significant weight.

The Board notes that if the Veteran believes he has other symptoms of a condition which warrants service connection as a "gulf war syndrome" condition, or a qualifying disease, then he should submit lay statements or evidence he has with a supplemental claim.

No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Additionally, the Veteran has a duty to assist and cooperate with VA in developing evidence - the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991).

Based on the foregoing, the claimed entitlement to service connection for "gulf war syndrome" must be denied.

Increased Rating

Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long
capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal.

In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In assigning a higher disability rating, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. See 38 U.S.C. § 5107(b). If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter than the benefit-of-the-doubt rule applies, but the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to a compensable rating for bilateral hearing loss

The Veteran asserts that he is entitled to a compensable rating for his bilateral hearing loss.

Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Currently, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, using the Maryland CNC, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85.

Under
itory acuity is gauged by examining the results of controlled speech discrimination tests, using the Maryland CNC, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85.

Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman Numeral. 38 C.F.R. § 4.86(b).

Here, the Veteran contends he should have a higher rating for his hearing loss which is currently rated at zero percent or noncompensable.

In February 2024, the Veteran had a VA hearing loss examination. See C&P Examination dated March 2024.

In February 2024, the examiner found that the Veteran's Puretone thresholds were as follows:

Feb. 2024 HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 15 15 35 45 27.5 94%

LEFT 10 45 25 20 25.0 98%

Using the Table VI, the Veteran's right ear had a numerical designation of "I" and his left ear had a numerical designation of "I." Following the percentages evaluations listed in Table VII, the Veteran was entitled to a maximum of 0 percent.

The Board finds that a noncompensable rating is supported by this valid testing of the Veteran's hearing in February 2024. There is no evidence that the test was invalid or that the Veteran suffers from worse hearing than described by the audiometric test above. There is no evidence in the record or evidence presented by the Veteran which would support a further worsening of his hearing loss since the examination above and before the decision on appeal. Considering the competent and credible evidence in the record, a noncompensable rating is properly assigned to the Veteran's hearing loss based on the mechanical application of the rating criteria.

In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his bilateral hearing loss was worse than the rating assigned during the period on appeal. For example, he stated that it was hard to hear conversation and that people had to repeat themselves when speaking with him. See C&P Examination dated March 2024.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his bilateral hearing loss according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board considered the lay statements of the Veteran concerning the nature and extent of his hearing loss; however, these statements are considered in the context of all the evidence of record, including the objective medical audiological testing that has been reported above.

The medical findings (as provided above) directly address the criteria under which hearing loss disabilities are evaluated. There is no basis for finding that the above audiometric test was invalid or not representative of the Veteran's hearing loss during
6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The medical findings (as provided above) directly address the criteria under which hearing loss disabilities are evaluated. There is no basis for finding that the above audiometric test was invalid or not representative of the Veteran's hearing loss during this period. Therefore, this evidence is both competent and credible and the Board finds it to be highly persuasive.

There is no evidence that there has been any worsening since the Veteran's February 2024 examination and before the decision on appeal.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record as to the Veteran's bilateral hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In sum, the Board has considered the evidence of record, including the available audiogram results, and finds that the Veteran's assigned bilateral hearing loss was noncompensable. A higher rating for the Veteran's bilateral hearing loss is not warranted for this period. Therefore, the Veteran is denied a compensable rating for his hearing loss.

2. Entitlement to a rating in excess of 10 percent for tinnitus

Diagnostic Code 6260 provides that a maximum schedular rating of 10 percent is to be assigned for recurrent tinnitus. Note 2 following the Diagnostic Code states: "assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head." 38 C.F.R. § 4.87, Diagnostic Code 6260.

Here, the evidence reflects that the Veteran experiences bilateral tinnitus. He has been assigned an initial 10 percent rating throughout the pendency of the claim. The 10 percent evaluation assigned in this case is the maximum schedular evaluation available for tinnitus. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). There is no legal basis upon which to award a schedular evaluation in excess of 10 percent, nor has the Veteran argued otherwise.

As there is no legal basis upon which to award a higher schedular rating for tinnitus, the Veteran's appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board emphasizes that the Veteran is already in receipt of the maximum schedular evaluation for tinnitus, whether unilateral or bilateral.

3. Entitlement to a rating in excess of 50 percent for PTSD with TBI

The Veteran's PTSD with TBI is rated under Diagnostic Code 8045-9411, 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130.

A 50 percent rating is warranted for 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 there is 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 work like setting); and an inability to establish and maintain effective relationships.

A 100 percent rating is assigned for 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
essional 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 work like setting); and an inability to establish and maintain effective relationships.

Under this general formula, ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted). Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation. Bankhead, 29 Vet. App. at 18; Vazquez-Claudio, 713 F.3d at 116-17 (quotations omitted). In sum, "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead, 29 Vet. App. at 22 (internal citations omitted).

Here, the Veteran contends that he is entitled to an evaluation in excess of 50 percent for PTSD.

Considering the evidence in the light most favorable to the Veteran, the Board finds that the Veteran has had chronic and intermittent severe psychological symptoms at the level of 70 percent due to PTSD with TBI.

For example, the Veteran's VA treatment records show that he called the suicide hotline in December 2023. At that time, the Veteran agreed to a safety plan. See CAPRI received February 2024.

Then in February 2024, the Veteran had a mental health consultation at the VA. The Veteran stated that he had the most difficulty with anxiety, alcohol use, and trauma. He had called the suicide help line during the holidays when he was alone and having a tough time. He was struggling with the impact of the trauma he had experienced and that he also at times would binge drink. He reported struggling with negative thoughts about himself and thoughts of guilt. He reported nightmares, night terrors, and intrusive thoughts. He said he could not tolerate crowds, disliked people, and struggled to build new relationships. He reported his symptoms interfered with his job because he would verbally be aggressive with coworkers. See CAPRI received March 2024.

Then the Veteran had a VA examination in March 2024. The Veteran had a diagnosis of TBI and PTSD. The examiner stated that it was not possible to differentiate the symptoms of PTSD and TBI because they overlapped. The Veteran reported having four jobs since leaving the military and that he had been fired from each due to verbal arguments with supervisors. He was married with two children. He reported having a good relationship with his children, but he was arguing with his wife often. He was in relationship counseling. The Veteran reported no close friends due to distrusting people. As for his mental health history, he reported private counseling and marriage counseling. He reported no history of psychiatric medications, no suicide attempts, and no psychiatric hospitalizations. He also reported drinking alcohol regularly for self-medication, but using no other illegal medications, no driving violations related to alcohol, and no detoxification or rehabilitation stays for alcohol. See C&P Examination received March 2024.

The March 2024 VA examiner reported that the Veteran had symptoms including depressed moods, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances
children. He reported having a good relationship with his children, but he was arguing with his wife often. He was in relationship counseling. The Veteran reported no close friends due to distrusting people. As for his mental health history, he reported private counseling and marriage counseling. He reported no history of psychiatric medications, no suicide attempts, and no psychiatric hospitalizations. He also reported drinking alcohol regularly for self-medication, but using no other illegal medications, no driving violations related to alcohol, and no detoxification or rehabilitation stays for alcohol. See C&P Examination received March 2024.

The March 2024 VA examiner reported that the Veteran had symptoms including depressed moods, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting. The examiner also reported that the Veteran met the criteria for PTSD including irritable behavior and angry outbursts. The VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. Id.

While the Veteran has had ongoing and serious difficulty with PTSD, he does not present with total impairment to daily functioning. In order to meet the level of 100 percent impairment for a mental disorder, a veteran must have symptoms like gross impairments 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. See 38 C.F.R. § 4.130.

The Veteran has had suicidal ideation noted in December 2023. However, the Board does not find that the Veteran is in an ongoing danger of hurting himself. The Veteran was willing to agree to a safety plan, and he later reported removing guns and knives from his home. See CAPRI received March 2024. As such, after a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is entitled to a 70 percent evaluation, but no higher, for his PTSD with TBI.

While the Veteran certainly continues to cope with serious manifestations of his PTSD, they do not rise to the level of total occupational and social impairment as contemplated by the rating schedule.

As for the Veteran's TBI, the Board finds that it has been properly rated in conjunction with his mental condition as the condition symptoms overlap. The Board finds that a different rating under TBI would not allow him to have a higher rating that he has already received under PTSD and headaches.

If the Veteran was rated instead under the TBI code, DC 8045, he would not meet the level of total or 100 percent, which for TBI is defined as a persistent altered state of consciousness, such as a vegetative state, minimally responsive state, coma. Therefore, the Veteran would not warrant a higher rating under TBI. See 38 C.F.R § 4.124a, DC 8045.

As such, a 70 percent evaluation is warranted for the Veteran's PTSD with TBI, but no higher evaluation is warranted.

The evidence is persuasively against a rating in excess of 70 percent. The evidence weighs against the claim for an evaluation in excess of 70 percent, and the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an evaluation in excess of 70 percent must be denied.

4. Entitlement to a rating in excess of 30 percent for headaches

The Veteran has requested an increased rating for his migraine headaches condition.

The Veteran's service-connected headaches are currently evaluated at 30 percent disabling from January 19, 2024, under 38 C.F.R. § 4.1249(a), DC 8100.

Headaches with less frequent attacks warrant a noncompensable evaluation. Headaches with characteristic prostrating attacks averaging one in 2 months, over the last several months, are entitled to a 10 percent evaluation. Headaches with characteristic prostrating attacks occurring on an average of once a month, over the last several months, are entitled to a 30 percent evaluation. A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

The Court's holding in Johnson v. Wilkie, 30 Vet. App. 245, 247 (2018), is that the rating criteria under DC 8100 are successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating
months, are entitled to a 10 percent evaluation. Headaches with characteristic prostrating attacks occurring on an average of once a month, over the last several months, are entitled to a 30 percent evaluation. A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

The regulations do not define prostrating. Dorland's Illustrated Medical Dictionary defines prostration as extreme exhaustion or powerlessness. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1554 (31st ed. 2007). VA's Adjudication Procedures Manual (M21-1) defines prostrating under Diagnostic Code 8100 as "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b).

In Pierce v. Principi, the Court examined the "productive of severe economic inadaptability" criterion for a 50 percent evaluation under Diagnostic Code 8100 and noted that "[n]owhere in the DC is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.]." 18 Vet. App. 440, 446 (2004). The Court explained that, contrary to the Secretary's argument, "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50 [percent] rating." Id. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16(a)). In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445.

Here, the Board finds that an increased rating of 50 percent is supported by the overall evidence.

In particular, the Veteran had a VA examination in March 2024. He reported migraine headaches two to three times a week with dizziness. He stated that he pushes through his symptoms and does not take medication. He explained that medication does not work. He reported having to pull over his car and rest for 45 minutes to an hour, two to three times, a week, while he was working, but that his job was accommodating. He reported his symptoms included pulsating or throbbing head pain, pain localized on one side of his head, nausea, sensitivity to light, sensitivity to sounds, changes in vision, and sensory changes. See C&P Examination received March 2024.

While the term prostrating has not been fully defined, the Board in this decision finds that the need to rest, meets the level of a prostrating attack.

In sum, the Veteran has reported two to three migraine headaches a week which the Board finds meets the level of frequent headaches. He reported he needed to take breaks while he was working two to three times a week for 45 minutes to an hour. The Board finds that this shows that his headaches are at least productive of economic inadaptability. Considering the evidence to the Veteran's benefit, the Board finds that the Veteran had frequent prostrating migraine headaches productive of severe economic inadaptability.

Therefore, the Board finds that a rating of 50 percent is warranted for the Veteran's post concussive migraine headaches due to their frequency, severity, and effects on his work.

REASONS FOR REMAND

1. Entitlement to service connection for a low back disability is remanded.

Although further delay is regrettable, a remand is necessary to fulfill
. He reported he needed to take breaks while he was working two to three times a week for 45 minutes to an hour. The Board finds that this shows that his headaches are at least productive of economic inadaptability. Considering the evidence to the Veteran's benefit, the Board finds that the Veteran had frequent prostrating migraine headaches productive of severe economic inadaptability.

Therefore, the Board finds that a rating of 50 percent is warranted for the Veteran's post concussive migraine headaches due to their frequency, severity, and effects on his work.

REASONS FOR REMAND

1. Entitlement to service connection for a low back disability is remanded.

Although further delay is regrettable, a remand is necessary to fulfill a pre-decisional duty to assist the Veteran.

The VA has a duty to assist Veterans in obtaining records. The VA has a duty to make reasonable requests to obtain missing private treatment records. As to private records, if the VA's reasonable attempts to obtain any missing private treatment records fails, the VA is to offer the Veteran the opportunity to supply the records himself.

In particular, the Veteran stated at his VA examination that he had magnetic resonance imaging (MRI) and x-rays done, as well as, other therapy or treatment for his back, but this care was in the private sector. However, it does not appear that any record development was performed.

Therefore, the Board remands the claim for development of private treatment records as well as any imaging available.

Additionally, when an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd1039, 1043-44 (Fed. Cir. 1994).

Here, the examiner did not perform any imaging of the Veteran's back and no imaging results were noted in the VA examination. Due to the lack of testing, the only diagnosis in the VA examination was lumbosacral strain. The examiner opined that the Veteran's strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's opinion appeared to rest on the absence of evidence and noted that back strain was related to sports and other activities, but that essentially a strain in-service was not related to the Veteran's current back condition or strain.

The Board finds that the opinion is inadequate and remands the claim for a new examination and opinion after records development has occurred. This is a pre-decisional duty to assist the Veteran.

2. Entitlement to service connection for left knee disability is remanded.

3. Entitlement to service connection for right knee disability is remanded.

Although further delay is regrettable, a remand is necessary to fulfill a pre-decisional duty to assist the Veteran.

The March 2024 opinion stated that the Veteran was only seen once in 2010 and once in 2014 for knee pain according to service treatment records. The opinion concluded that it was less likely than not that the Veteran's current patellofemoral knee condition was not incurred in service. See C&P Examination received March 2024.

The March 2024 opinion is factually inaccurate. The Veteran reported in July 2010 that he had four months of left knee pain. He also reported knee joint pain in December 2013, March 2014, and May 2014. The Veteran's post deployment assessment from January 2016 reported a history of knee pain that required "further eval." See STR received January 2024. The Veteran also stated "yes" to knee trouble on his June 2016 medical history report. Id.

Therefore, the Board finds that the March 2024 opinion is inadequate and remands the claim for a new opinion. This is a pre-decisional duty to assist the Veteran.

4. Entitlement to service connection for a sleep disability including sleep apnea and insomnia is remanded.

Although further delay is regrettable, a remand is necessary to fulfill a pre-decisional duty to assist the Veteran.

The VA must provide an examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that
finds that the March 2024 opinion is inadequate and remands the claim for a new opinion. This is a pre-decisional duty to assist the Veteran.

4. Entitlement to service connection for a sleep disability including sleep apnea and insomnia is remanded.

Although further delay is regrettable, a remand is necessary to fulfill a pre-decisional duty to assist the Veteran.

The VA must provide an examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2018).

The Veteran filed a claim for sleep apnea; however, the Board finds that sleep disability more generally is also within the scope of the Veteran's claim. While it's unclear whether the Veteran has had a sleep study, he has had treatment for sleep disability and he has been diagnosed with insomnia.

The Veteran contended in his application that he had sleep apnea due to exposure during his deployment to Afghanistan. The Veteran's service records also show that he reported trouble sleeping more than once during service. See STR received January 2024. In fact, in July 2016, his service treatment records noted that he had a concern for sleep apnea, but he had not been evaluated for it. Id. He also reported at VA treatment extreme sleep problems as well as difficulty falling asleep, and difficulty staying asleep. See CAPRI received February 2024, and March 2024.

Considering the totality of the evidence, the record contains insufficient competent medical evidence, to decide the claim. The last requirement of the McLendon analysis is satisfied and the VA must provide a competent medical opinion.

Therefore, the Board remands the claim for a VA examination and opinion with testing to be completed as determined by the VA examiner. This is a pre-decisional duty to assist the Veteran.

5. Entitlement to TDIU due to service-connected disability is remanded.

The Veteran's PTSD examination noted that he had been fired from four jobs and was fired shortly before his examination. The issue of TDIU is therefore implied by the record prior to the decision on appeal.

The Veteran's claim for TDIU is intertwined with the above remanded claims. See Harris v. Derwinski, 1 Vet. App. 180 (U.S. 1991) (which holds that disabilities that are inextricably intertwined should remain together). The AOJ has also not attempted to perform development of TDIU, which is a pre-decisional duty to assist the Veteran when implied by the records prior to the decision on appeal.

The matters are REMANDED for the following action:

1. PRIVATE RECORDS: request the Veteran to provide authorization for release of all relevant private medical records to VA.

In particular, the Veteran reported at his VA examinations that he had private treatment for back/spine including imaging like x-ray or MRI and these records do not appear to be in the record nor were private records requested by the AOJ.

If any records identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain such records. The Veteran is also to be asked to provide any relevant records that may be in his possession as well.

2. LOW BACK DISABILITY: Schedule the Veteran for a VA examination for his low back disability or lumbosacral strain. The examiner must review the relevant documents in the claims file, including this remand. The examiner should perform imaging or other testing, if he or she feels that testing is necessary.

The examiner is asked to provide a response to the following:

(a.) Is it at least approximately as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's low back condition is related to service, including the Veteran's reports that he injured his back while deployed to Afghanistan?

Provide a rationale to support the opinion(s).

3. LEFT KNEE and RIGHT KNEE: Schedule the Veteran for a VA examination for the claimed LEFT knee and RIGHT knee disability. The examiner must review the relevant documents in the claims file. The examiner should perform imaging or other testing, if he or she feels that it is necessary.

Please note that the March
she feels that testing is necessary.

The examiner is asked to provide a response to the following:

Provide a rationale to support the opinion(s).

Please note that the March 2024 opinion is factually inaccurate. The Veteran reported in July 2010 that he had four months of left knee pain. He also reported knee joint pain in December 2013, March 2014, and May 2014. The Veteran's post deployment assessment from January 2016 reported a history of knee pain that required "further eval." See STR received January 2024. The Veteran also stated "yes" to knee trouble on his June 2016 medical history report. Id.

The examiner is asked to provide a response to the following:

(a.) Is it at least approximately as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left and/or right knee disability is related to service?

(b.) Provide a rationale to support the opinion(s).

4. SLEEP: Schedule the Veteran for a VA examination for the claimed sleep disability, which may include fatigue. The examiner must review the relevant documents in the claims file. The examiner should perform testing, if he or she feels that it is necessary. Please note that the Veteran reported difficulty going to sleep and staying asleep while he was in active-duty service and his VA treatment records even mentioned whether he needed a sleep study.

The examiner is asked to provide a response to the following:

(a.) Is it at least approximately as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep condition is related to service, including the Veteran's reports that his sleep condition began while he was deployed to Afghanistan, and noting that the Veteran had gulf war service?

Provide a rationale to support the opinion(s).

5. TDIU: Provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability), and a VA Form 21-4192 (Request for Employment Information with Claim for Disability Benefits) and ask him to complete and return these forms. Then assess the Veteran's claim for TDIU.

S. Schick

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Parnell, C. E.

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.

Analyze in VA Law Explorer