Case A26011909

Summary

The veteran served from January 2010 to April 2013. The veteran appealed decisions from February 2019 and April 2019, but the Board dismissed these appeals as untimely, noting the November 2024 Notice of Disagreement was filed more than one year after the original decisions and no extension was requested or granted. The Board also dismissed the appeal for obstructive sleep apnea due to it being a deferred issue. The veteran sought service connection for a bilateral hand disorder, but the Board denied this claim, finding no current disability or functional impairment based on a March 2024 VA examination and subsequent private chiropractic records. The Board noted that while the veteran experienced some discomfort, it did not rise to a compensable level for ankylosis or limitation of motion. The veteran also sought an increased rating for an acquired psychiatric disorder, claiming symptoms approximating a 70 percent rating. However, the Board found the evidence, including a February 2024 VA examination, more closely approximated a 50 percent rating, citing symptoms like anxiety, chronic sleep impairment, and difficulty adapting to stress, but ultimately concluding the veteran's overall functional impairment was consistent with a 50 percent rating, noting his occupational success. The claim for an increased rating for tinnitus was denied, as the veteran was already assigned the maximum 10 percent schedular rating. Several musculoskeletal conditions, including bilateral hip disorder, left shoulder disorder (secondary to right shoulder), left knee disorder, right knee disorder, right shoulder disorder, cervical spine disorder, lumbar spine disorder, bilateral lower extremity radiculopathy, and right upper extremity radiculopathy, were remanded for further development.

Full Decision Text

Citation Nr: A26011909
Decision Date: 02/09/26	Archive Date: 02/09/26

DOCKET NO. 241114-496071
DATE: February 9, 2026

ORDER

The issue of entitlement to service connection for right ear hearing loss is dismissed.

The issue of entitlement to service connection for bone fractures to the right tibia is dismissed.

The issue of entitlement to service connection for obstructive sleep apnea is dismissed.

The issue of entitlement to an initial rating in excess of 50 percent for other specified trauma and stressor related disorder is dismissed.

Service connection for a bilateral hand disorder is denied.

A rating in excess of 50 percent for an acquired psychiatric disorder is denied.

A rating in excess of 10 percent for tinnitus is denied.

REMANDED

The issue of entitlement to service connection for a bilateral hip disorder is remanded.

The issue of entitlement to service connection for a left shoulder disorder, claimed as secondary to a service-connected right shoulder disorder, is remanded.

The issue of entitlement to a rating in excess of 10 percent for a left knee disorder is remanded.

The issue of entitlement to a rating in excess of 10 percent for a right knee disorder is remanded.

The issue of entitlement to a rating in excess of 20 percent for a right shoulder disorder is remanded.

The issue of entitlement to a rating in excess of 20 percent for a cervical spine disorder is remanded.

The issue of entitlement to a rating in excess of 10 percent for a lumbar spine disorder is remanded.

The issue of entitlement to a compensable rating for radiculopathy of the bilateral lower extremities is remanded.

The issue of entitlement to a rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded.

FINDINGS OF FACT

1. The Veteran's November 2024 Notice of Disagreement seeking Board review of February 2019 and April 2019 rating decisions was received more than one year after the Veteran was notified of those decisions.

2. The Veteran did not move for an extension of the time to filing his notice of disagreement and has not offered good cause for his untimely filing.

3. The persuasive evidence of record does not support a finding that the Veteran has a diagnosis of a bilateral hand disorder.

4. Throughout the appeal period, the evidence does not show that the severity, frequency, and duration of the Veteran's symptoms approximated occupational and social impairment with deficiencies in most areas.

5. The Veteran's tinnitus is rated at the maximum schedular rating authorized under Diagnostic Code 6260.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeals of February 2019 and April 2019 rating decisions are met. 38 U.S.C. §§ 7105(b)(1)(A), 7105(b)(1)(C), 7108; 38 C.F.R. §§ 3.109(b), 20.203(c).

2. The criteria for service connection for a bilateral hand disorder have not been met. 38 U.S.C. § 1110, 1112, 1116, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309.

3. The criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9499-9411.

4. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.87, Diagnostic Code 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from January 2010 to April 2013.

In the November 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 and September 2024 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran, or his 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
 had active service from January 2010 to April 2013.

In the November 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 and September 2024 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran, or his 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, with respect to the remanded 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).

Dismissal of Untimely Appeals

As an initial matter, the Board notes that the Veteran's November 2024 NOD attempted to appeal the February 2019 deferred issues of obstructive sleep apnea and bone fractures. However, a deferred rating decision does not constitute an adjudicative determination from which a NOD may be filed; thus, the Board does not have jurisdiction to review these claims, and the appeal must be dismissed for lack of appellate jurisdiction. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 20.104(a), 20.105, 20.201; Shipley v. Shinseki, 24 Vet. App. 458 (2011) (concluding that a deferred rating decision does not constitute an appealable adjudicative action).

Additionally, the Veteran's November 2024 NOD requested the Board's review of rating decisions from February 2019 (right ear hearing loss) and April 2019 (obstructive sleep apnea, bone fractures and other specified trauma and stressor related disorder). The Veteran's appeal was docketed without limitation. See December 30, 2024, Board Docketing Letter.

By law, an NOD must be filed within one year of the date that notice of a decision is issued. 38 U.S.C. § 7105(b)(1)(A). This law is a mandatory claims-processing rule. See Ferko v. McDonough, 37 Vet. App. 262, 265 (2024) (en banc) (considering the same section in its pre-amended, "legacy" version); compare 38 U.S.C. § 7105(b)(1)(A) (2000 & Supp. III 2004), with 38 U.S.C. § 7105(b)(1)(A) (2024). When an NOD is not received within that time, the Board cannot entertain the request for review. 38 U.S.C. § 7108; see id.

Here, the Veteran's November 2024 NOD was not received within one year of the February 2019 and April 2019 decisions. See February 15, 2019, and April 24, 2019, Notification Letters (notifying the Veteran of each of the respective rating decisions). The Veteran did not file a request to extend the time limit for submitting his NOD. 38 C.F.R. § 20.203(c). The Board has not waived enforcement of the one-year time limit, since the only support for such an argument would be the Board's Docketing Letter, but it neither purported to be a decision about timeliness, nor was it signed by a member of the Board or any other office purporting to have authority to make such a decision. 38 U.S.C. § 7105(b)(1)(C). Likewise, enforcement of the rule has not been forfeited since this is the first opportunity for the Board to apply the law to the facts of the
 the respective rating decisions). The Veteran did not file a request to extend the time limit for submitting his NOD. 38 C.F.R. § 20.203(c). The Board has not waived enforcement of the one-year time limit, since the only support for such an argument would be the Board's Docketing Letter, but it neither purported to be a decision about timeliness, nor was it signed by a member of the Board or any other office purporting to have authority to make such a decision. 38 U.S.C. § 7105(b)(1)(C). Likewise, enforcement of the rule has not been forfeited since this is the first opportunity for the Board to apply the law to the facts of the Veteran's case. There are no other relevant factors that would support not enforcing the rule in this case. See Ferko, 37 Vet. App. at 267.

Under the facts of this case, the mandatory claims-processing rule requiring a timely NOD must be enforced. The Veteran's November 2024 NOD initiating this appeal was not timely received regarding the appeals of decisions in February 2019 and April 2019, and an adequate excuse has not been established to not apply the mandatory claims-processing rule requiring a timely NOD. The appeals of these rating decisions are therefore dismissed. 38 U.S.C. §§ 7105(b)(1)(A), 7108. The Veteran's November 2024 NOD was timely as to the March and September 2024 rating decisions, and those issues are further addressed herein.

Service connection for a bilateral hand disorder is denied.

Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Pivotal to any service connection claim is the presence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a current disability, there can be no valid claim.

The Board recognizes that pain resulting in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, there is no functional impairment.

The Veteran presented for a VA examination in March 2024, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported that he did not have any functional loss or impairment related to his bilateral hands. Range of motion testing was normal for both hands. The Veteran did not report flare-ups and there was no loss of range of motion after repeated testing. X-ray images revealed normal hands. The examiner determined that the Veteran did not have a current diagnosis of a bilateral hand disorder. The examiner concluded that there was no functional loss in the Veteran's hands such that his ability to perform occupational tasks (such as standing, walking, lifting or sitting) would be impacted. 

The Board finds that the March 2024 examination report is adequate, as it was based on a review of the claims file and an accurate review of the facts in this case and conducted all appropriate testing. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Additionally, the Board notes that there is
 repeated testing. X-ray images revealed normal hands. The examiner determined that the Veteran did not have a current diagnosis of a bilateral hand disorder. The examiner concluded that there was no functional loss in the Veteran's hands such that his ability to perform occupational tasks (such as standing, walking, lifting or sitting) would be impacted. 

The Board finds that the March 2024 examination report is adequate, as it was based on a review of the claims file and an accurate review of the facts in this case and conducted all appropriate testing. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Additionally, the Board notes that there is no other diagnosis of a bilateral hand disorder dated within the appeal period. In this regard, while the Veteran submitted private chiropractic records reflecting treatment for the left pointer finger and discomfort of the right hand, the Board finds that such does not demonstrate a compensable level of functional impairment. 

In particular, ankylosis is not show for any finger such as to warrant a compensable rating under Diagnostic Codes 5216-5227. Additionally, there was no limitation of motion of the thumb with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, to warrant a compensable rating under Diagnostic Code 5228.

The record does not support a finding of bilateral hand pain with functional loss or an impairment of his earning capacity. While the Veteran is competent to describe his pain, he has not identified any functional loss of his earning capacity.

Accordingly, the Board concludes that the Veteran does not have a bilateral hand disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As there is no current disability, service connection for a bilateral hand disorder is denied.

A rating in excess of 50 percent for an acquired psychiatric disorder is denied.

The Veteran seeks a rating in excess of 50 percent for his acquired psychiatric disorder.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating.

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is
 directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

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

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 hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

Here, the relevant evidence consists of a February 2024 VA examination, which shows that the Veteran's acquired psychiatric disorder was manifested by symptoms associated with a 30 percent rating-anxiety and chronic sleep impairment-and a symptom associated with a 70 percent rating, namely, difficulty in adapting to stressful circumstances (including work or a worklike setting). The Veteran also had symptoms that are not listed with a specific rating, such as nightmares, fatigability and intrusive thoughts.

The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Veteran's symptoms of nightmares, intrusive thoughts and fatigability are similar to chronic sleep impairment and disturbances of motivation and mood which are contemplated by the assigned 50 percent rating.

The Board notes that the Veteran submitted a January 2025 statement, in which he alleged the February 2024 VA examination was inadequate, stating that he reported symptoms of increased anxiety, worsening sleep conditions, nightmares and increasing difficulty in a work setting. However, the Board finds that these symptoms were noted in the February 2024 examination. Further, anxiety and impaired sleep are contemplated by a 30 percent rating, and the Board has found that the difficultly adapting to stressful circumstances, to include a work setting, is contemplated by a 70 percent rating. 

The Veteran also stated that his file now includes medical records reflecting suicidal ideation, obsessive compulsive disorders, difficulty to adapt, and an inability to establish meaningful relationships. He stated that these records are dated August 2024 through December 2024. However, these additional symptoms and medical records pertain to a timeframe subsequent to the period currently on appeal, and symptoms of such severity are not otherwise noted in the record. The Board has considered the Veteran's statements. However, as noted below, it finds that he Veteran's level of functional impairment consistent with a 50 percent rating. Further, there was no pre-decisional duty to assist error by the AOJ in failing to obtain these records. 

The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. The February 2024 VA examination reflects that the Veteran has been married for the past eight years and that he and his wife go ballroom dancing together. He reported disengaging when she asks him about his deployment and withdrawing when he is in noisy situations. He also reported being irritable and always watchful. During the examination, the Veteran was appropriately dressed and groomed. He was pleasant and cooperative and showed no signs of psychomotor agitation or retardation. His mood was anxious and his affect was restricted. His speech was normal in tone, rate, and content. His thoughts appeared organized and logical. There was no evidence of psychosis. He denied any current suicidal or homicidal thoughts. 

While the Veteran did experience a symptom contemplated by a
 February 2024 VA examination reflects that the Veteran has been married for the past eight years and that he and his wife go ballroom dancing together. He reported disengaging when she asks him about his deployment and withdrawing when he is in noisy situations. He also reported being irritable and always watchful. During the examination, the Veteran was appropriately dressed and groomed. He was pleasant and cooperative and showed no signs of psychomotor agitation or retardation. His mood was anxious and his affect was restricted. His speech was normal in tone, rate, and content. His thoughts appeared organized and logical. There was no evidence of psychosis. He denied any current suicidal or homicidal thoughts. 

While the Veteran did experience a symptom contemplated by a 70 percent rating-difficulty in adapting to stressful circumstances (including work or a worklike setting)- and has reported other symptoms associated with a 70 percent rating such as having suicidal ideations and obsessive compulsive disorders, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Further, the February 2024 VA examination indicates that the Veteran is excelling occupationally, stating that he "has acquired two master's degrees. He has been working as a facility manger. He had been with one company but made so many improvements that he became bored with the job. He then moved to working as a facility manager for Walmart about one year ago. He is currently in charge of 63 stores, but more importantly, there are other positions that would allow him to be upwardly mobile with this job."

In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating. The criteria for a 70 percent or higher rating are not met and the appeal must be denied.

A rating in excess of 10 percent for tinnitus is denied.

The Veteran seeks a rating in excess of 10 percent for his tinnitus; no specific argument has been advanced.

Recurrent tinnitus is evaluated under Diagnostic Code 6260, which provides that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, in both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

The Veteran has been assigned the maximum schedular rating available for tinnitus, which is assigned regardless of the extent of the tinnitus and whether the ringing is one or both ears. Moreover, the Veteran has not identified any symptoms of his tinnitus that are not contemplated by the rating schedule, so extraschedular consideration has not been raised. As the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating or separate 10 percent disability rating for tinnitus of each ear are not warranted.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

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

In September 2024, a VA opinion was obtained regarding the etiology of the Veteran's bilateral hip disorder. While that opinion drew a negative conclusion, it indicated, in part, that changes in posture and gait from the Veteran's service-connected lumbar spine and knee disorders could impact his hips. However, the opinion did not address aggravation.

Accordingly, an addendum opinion is warranted. This is a pre-decisional duty-to-assist error.

Entitlement to service connection for a left shoulder disorder, claimed as secondary to a service-connected right shoulder disorder, is remanded.

The Veteran claims his left shoulder disorder is due to overuse from his service connected right shoulder disorder.

VA opinions regarding the etiology of the Veteran's left shoulder disorder were obtained in March and June 2024. Notably, the opinions did not address aggravation, and the June 2024 opinion raised the theory that the Veteran's left shoulder disorder may be secondary to his service-connected cervical spine disorder.

Accordingly, an addendum opinion is warranted. This is a pre-decision
 aggravation.

Accordingly, an addendum opinion is warranted. This is a pre-decisional duty-to-assist error.

Entitlement to service connection for a left shoulder disorder, claimed as secondary to a service-connected right shoulder disorder, is remanded.

The Veteran claims his left shoulder disorder is due to overuse from his service connected right shoulder disorder.

VA opinions regarding the etiology of the Veteran's left shoulder disorder were obtained in March and June 2024. Notably, the opinions did not address aggravation, and the June 2024 opinion raised the theory that the Veteran's left shoulder disorder may be secondary to his service-connected cervical spine disorder.

Accordingly, an addendum opinion is warranted. This is a pre-decisional duty-to-assist error.

Entitlement to a rating in excess of 10 percent for a left knee disorder is remanded.

Entitlement to a rating in excess of 10 percent for a right knee disorder is remanded.

Entitlement to a rating in excess of 20 percent for a right shoulder disorder is remanded.

Entitlement to a rating in excess of 20 percent for a cervical spine disorder is remanded.

Entitlement to a rating in excess of 10 percent for a lumber spine disorder is remanded.

Entitlement to a compensable rating for radiculopathy of the bilateral lower extremities is remanded.

Entitlement to a rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded.

The evidence shows that the Veteran's above service-connected musculoskeletal disorders are treated with medication. See private chiropractic records, dated June 2023-January 2024.

In evaluating the severity of the Veteran's service-connected musculoskeletal disorders, the Board must discount the beneficial effects of medication, as the relevant rating criteria do not specifically contemplate the use of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); Ingram v. Collins, 38 Vet. App. 130 (2025).

In March 2023, the Veteran underwent VA examinations for his service-connected musculoskeletal disorders. The clinician who performed the VA examinations did not indicate that the Veteran took medication to manage his disorders, yet it is indicated on multiple private encounters that the Veteran takes medication to manage his disorders in question. As a result, the Board is unable to establish the Veteran's level of functioning caused by his service-connected musculoskeletal disorders without the use of medication. Indeed, because the evidence of record, particularly the VA examinations of record, do not adequately establish or describe the Veteran's service-connected musculoskeletal disorders without the ameliorative effects of medication, this is a pre-decisional duty to assist error that must be corrected on remand.

The matters are REMANDED for the following action:

1. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to:

a.	whether the Veteran's bilateral hip disorder is (i) caused or (ii) aggravated by his service-connected lumbar spine or bilateral knee disorders?

b.	whether the Veteran's left shoulder disorder is (i) caused or (ii) aggravated by his service-connected cervical spine disorder?

In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale.

Aggravation means an increase in disability - any additional impairment of earning capacity - of the nonservice-connected disability. Aggravation also includes situations where the claimed disability would be less severe and result in less functional impairment but for the service-connected disability because the service-connected disability results in the inability to treat the claimed disability.  

If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability.

It is left to the examiner's discretion whether to reexamine the Veteran.

All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved.

2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected neck, upper right extremity radiculopathy, right shoulder, lumbar spine, bilateral lower extremity radiculopathy and bilateral knee disorders. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

The examiner should state what the severity of the Veteran's service-connected neck, upper right extremity radiculopathy, right shoulder, lumbar spine, bilateral lower extremity radiculopathy and bilateral knee disorders might be absent the ameliorative effects of any medication taken.

If this is not feasible, the clinician MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the clinician cannot provide an opinion without resorting to mere speculation, the clinician should explain why
opathy, right shoulder, lumbar spine, bilateral lower extremity radiculopathy and bilateral knee disorders. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

The examiner should state what the severity of the Veteran's service-connected neck, upper right extremity radiculopathy, right shoulder, lumbar spine, bilateral lower extremity radiculopathy and bilateral knee disorders might be absent the ameliorative effects of any medication taken.

If this is not feasible, the clinician MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the clinician cannot provide an opinion without resorting to mere speculation, the clinician should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

 

 

M. Donohue

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.Z., Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.