Case A26024150

B. D. WATSON · 2026 · Case ID: A26024150

DENIED

Summary

The veteran, who served from July 1980 to July 1984, appeals the denial of service connection for multiple conditions, including TDIU, claustrophobia, PTSD, generalized anxiety disorder (GAD) secondary to PTSD, persistent depressive disorder, right foot degenerative changes secondary to a right knee injury, left hip osteoarthritis secondary to a right knee injury, right ear hearing loss, and an increased rating for tinnitus. The Board denied all claims. For TDIU, the Board found the veteran's service-connected tinnitus (10%) and noncompensable right ear hearing loss did not prevent substantially gainful employment, and no exceptional circumstances were presented. For claustrophobia, PTSD, and persistent depressive disorder, the Board found the first element of service connection (a current diagnosis by a qualified professional) was not met. For GAD secondary to PTSD, the Board denied service connection because the veteran had no diagnosed PTSD and the alleged in-service assaults were not corroborated by service records or post-service treatment notes. For the right foot and left hip conditions, the Board conceded current disabilities but found no evidence of in-service injury or continuity of symptomatology, as the Veteran first reported these issues approximately 40 years after service. For right ear hearing loss, the Board applied the rating schedule to audiometric test results, yielding a 0% disability rating, and found no exceptional circumstances warranting a different evaluation. For tinnitus, the Board found the current 10% evaluation was the maximum permitted by regulation. The Board denied all claims, finding the evidence persuasively weighed against service connection and that the benefit of the doubt doctrine was inapplicable.

Rationale

Veteran has two service-connected disabilities: tinnitus (10%) and noncompensable right ear hearing loss.; Veteran does not meet schedular criteria for TDIU.; Record does not reflect disabilities were so exceptional as to preclude substantially gainful employment.

Special Benefit

TDIU

Docket No.

250826-578900

Full Decision Text

Citation Nr: A26024150
Decision Date: 03/18/26 Archive Date: 03/18/26

DOCKET NO. 250826-578900
DATE: March 18, 2026

ORDER

Entitlement to total disability based on individual unemployability (TDIU) is denied.

Entitlement to service connection for claustrophobia is denied.

Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for generalized anxiety disorder (GAD), to include as secondary to PTSD is denied.

Entitlement to service connection for persistent depressive disorder is denied.

Entitlement to service connection for degenerative changes of the right foot, first metatarsophalangeal joint, to include as secondary to a right knee injury with anterior cruciate ligament (ACL) tear is denied.

Entitlement to service connection for left hip osteoarthritis, to include as secondary to right knee injury with ACL tear is denied.

Entitlement to a compensable evaluation for right ear hearing loss is denied.

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

FINDINGS OF FACT

1. The Veteran has two service-connected disabilities, tinnitus evaluated at 10 percent and noncompensable right ear hearing loss and the evidence of record did not reflect that the Veteran was unable to secure and maintain substantial employment as a result of those service-connected disabilities.

2. The Veteran has not been diagnosed with claustrophobia, PTSD, or persistent depressive disorder.

3. The persuasive weight of the evidence weighs against a finding that the Veteran's right foot condition began in service or was causally related to service, and the Veteran is not service connected for a knee injury.

4. The persuasive weight of the evidence weighs against a finding that the Veteran's left hip condition began in service or was causally related to service, and the Veteran is not service connected for a knee injury.

5. The Veteran's right ear hearing loss does not meet the regulatory degree of hearing loss required for a higher rating.

6. The Veteran's tinnitus is evaluated at 10 percent, the maximum evaluation permitted under VA regulations.

CONCLUSIONS OF LAW

1. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18.

2. The criteria for service connection for claustrophobia have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for GAD, to include as secondary to PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for service connection for persistent depressive disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303,

6. The criteria for service connection for a right foot condition, to include as secondary to a right knee injury have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310.

7. The criteria for service connection for a left hip condition, to include as secondary to right knee injury have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3.310.

8. The criteria for a compensable right ear hearing loss evaluation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.87 Diagnostic Code (DC) 6100.

9. The criteria for a tinnitus evaluation in excess of 10 percent have not been met. 38 U.S.C. 1155; 38 C.F.R. §4.87a, DC 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3.310.

8. The criteria for a compensable right ear hearing loss evaluation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.87 Diagnostic Code (DC) 6100.

9. The criteria for a tinnitus evaluation in excess of 10 percent have not been met. 38 U.S.C. 1155; 38 C.F.R. §4.87a, DC 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1980 until July 1984. He was honorably discharged.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2025 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ), which denied entitlement to TDIU, and denied service connection for claustrophobia, persistent depressive disorder, GAD, and PTSD; a January 2025 decision which denied service connection for degenerative changes of the right foot and left hip; and an October 2024 decision which denied a compensable right ear hearing loss evaluation, and a tinnitus evaluation in excess of 10 percent. In August 2025, the Veteran filed a timely VA Form 10182, Notice of Disagreement (NOD) requesting the direct review docket with review by a Veterans Law Judge. Accordingly, the Board may only consider the evidence of record at the time of the respective rating decision on appeal. 38 C.F.R. § 20.301.

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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

By way of background, the Board notes that the Veteran's NOD included 2017 decisions addressing left ear hearing loss and a right knee injury. To the extent the Veteran intended to appeal these decisions, they were untimely. Rating decisions of the AOJ are final, subject to certain exceptions, none of which apply in this case. 38 U.S.C. § 7105 ; 38 C.F.R. § 3.104. If the Veteran has new and material evidence relating to these 2017 claims, the Veteran may file a supplemental claim. 38 C.F.R. § 3.156 (a)-(b). New and relevant evidence is required for supplemental claims filed pursuant to Advanced Modernization Appeals (AMA).

1. Entitlement to TDIU is denied.

A TDIU may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id.

In exceptional case, a TDIU may still be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 3.321(b), 4.16 (a). For the Veteran to prevail on a claim for an extraschedular TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside
factor which takes the case outside the norm. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Attention should be given to the Veteran's history, education, skills, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the Veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Additionally, "by discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." Ray, 31 Vet. App. 58.

An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they can perform the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to impairment owing to non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court defined "employment in a protected environment" within 38 C.F.R. § 4.16(a) to unambiguously mean "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111 (2024).

To establish entitlement to a TDIU, there must be impairment so severe that the average person is unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a).

The Veteran has two service-connected disabilities. He is service connected for tinnitus at 10 percent and has a noncompensable evaluation for right ear hearing loss. Thus, the Veteran does not meet the rating criteria for schedular TDIU.

The October 2024 VA PTSD disability benefits questionnaire noted that the Veteran stated he earned his Associate of Arts Degree in in 1988. He worked in computer operations sales for 15 years, and the last 25 years worked in various sales management jobs. The record did not reflect that the Veteran's tinnitus and noncompensable right ear hearing loss were so exceptional as to preclude obtaining and maintaining substantial employment as a result. Additionally, the Veteran has not asserted nor offered any evidence to support a contention that these two disabilities were so exceptional as to cause him to be unable to obtain and maintain substantial employment.

The Board finds that the persuasive weight of the evidence weighs against a finding that the Veteran was unable to secure and maintain substantial employment as a result of his right ear hearing loss and tinnitus.

The Board has considered the benefit of the doubt doctrine and determined it is not applicable. As the evidence is persuasively against the Veteran's claim for TDIU, the evidence is not in approximate balance, and the benefit of the doubt rule does not apply. Therefore, the claim must be denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected disease. 38 C.F.R. §§ 3.310 (a)-(b); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a); Allen v, Brown, 7 Vet. App. 439 (1995). When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. Id. A medical nexus opinion must state whether the claimed condition was caused by or aggravated by the service-connected condition. El-Amin v. Shinseki, 26 Vet. App. 136 (2013); 38 U.S.C. § 1110.

Secondary aggravation exists when the non-service-connected disability was not caused by a service-connected disability but would be less severe were it not for a service-connected disability. Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023).

Certain chronic diseases may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (generally one year). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is considered a "chronic disease" under 38 C.F.R. § 3.309 (a). Spondylosis is defined as degenerative spinal changes due to osteoarthritis (Dorland's Illustrated Medical Dictionary, 32nd ed., 2012). Therefore, the presumptive provisions of 38 C.F.R. § 3.303 (b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For
F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is considered a "chronic disease" under 38 C.F.R. § 3.309 (a). Spondylosis is defined as degenerative spinal changes due to osteoarthritis (Dorland's Illustrated Medical Dictionary, 32nd ed., 2012). Therefore, the presumptive provisions of 38 C.F.R. § 3.303 (b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For a showing of a chronic disease in service, the mere use of the word "chronic" will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303 (b) only apply to "chronic" diseases at 3.309(a)).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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, 492 F.3d at 1377.

Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay testimony is not competent to determine the extent or etiology of matters which require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

The claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a). The VA shall consider all information, including lay and medical evidence of record. VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b).
App. 428, 435 (2011).

2. Entitlement to service connection for claustrophobia is denied.

The first element of service connection is a current disability. The Veteran has not been diagnosed with claustrophobia. In April and June 2024, the Veteran reported to VA providers that he felt claustrophobic. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran was competent to report he felt claustrophobic, he was not competent to diagnose claustrophobia, which is considered a phobia, a mental disorder, pursuant to 38 C.F.R. § 9403. Lay testimony is not competent to determine the extent or etiology of matters which require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

VA regulations require mental illnesses to be evaluated pursuant to the criteria in the Diagnostic Statistical Manual (Fifth edition) (DSM V). 38 C.F.R. §4.125. Mental health professionals with the following credentials are qualified to diagnosed mental disorders: a board certified psychiatrist; a psychiatrist who has successfully completed an accredited psychiatry residency and who is appropriately credentialed and privileged; a licensed doctorate-level psychologist; a non-licensed doctorate level psychologist working toward licensure under close supervision by a board certified or board eligible psychiatrist or licensed doctoral level psychologist; a psychiatry resident under close supervision by a board-certified or board eligible psychiatrist or licensed doctoral level psychologist; and a psychology resident under close supervision by a board eligible psychiatrist or a licensed doctoral level psychologist.

The Veteran did not have a current diagnosis of claustrophobia made by a licensed mental health professional, as described above, based on DSM V criteria. Thus, the Board finds the first element of service connection has not been satisfied. As the first element has not been satisfied, there is no need to evaluate the remaining elements of service connection.

As the three elements of service connection have not been met, the persuasive weight of the evidence weighs against the finding of service connection for claustrophobia.

The Board has considered the benefit of the doubt doctrine and determined it is not applicable. As the evidence is persuasively against the Veteran's claim for service connection for claustrophobia, the evidence is not in approximate balance, and the benefit of the doubt rule does not apply. Therefore, the claim must be denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Entitlement to service connection for PTSD is denied.

With specific regard to PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997).

The first element of service connection is a current disability of PTSD. The October 2024 PTSD examiner opined that the Veteran did not meet the DSM V
).

3. Entitlement to service connection for PTSD is denied.

The first element of service connection is a current disability of PTSD. The October 2024 PTSD examiner opined that the Veteran did not meet the DSM V criteria for PTSD. Thus, the first element of service connection has not been satisfied. As the first element has not been satisfied, there is no need to evaluate the remaining elements of service connection.

As the three elements of service connection have not been met, the persuasive weight of the evidence weighs against the finding of service connection for claustrophobia.

The Board has considered the benefit of the doubt doctrine and determined it is not applicable. As the evidence is persuasively against the Veteran's claim for service connection for PTSD, the evidence is not in approximate balance, and the benefit of the doubt rule does not apply. Therefore, the claim must be denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

4. Entitlement to service connection for GAD, including as secondary to PTSD is denied.

The first element of service connection is a current disability. The October 2024 VA mental illness examination noted a diagnosis of unspecified anxiety disorder and bipolar disorder. Thus, the Board finds the first element of service connection for unspecified anxiety disorder and bipolar disorder have been satisfied.

The second element of service connection is an inservice illness or injury. The record has no evidence reflecting the Veteran incurred any mental illness in the service. The Veteran submitted a June 2024 statement that he was sexually assaulted twice during boot camp and once while on the ship. In addition to the three sexual assaults, the Veteran further stated he was physically assaulted by three different servicemen on three different occasions. Two of the incidents occurred at work. The Veteran also reported that he was held at gunpoint by a "local while setting up the ships party."

The Veteran acknowledged that he did not report any of these seven incidents. The Veteran also did not provide any witness statements to corroborate any of these events. The Board further notes that there were numerous VA mental health treatment records from 2014-2016 and none of these treatment records mentioned any one of these seven incidents. Additionally, the Veteran advised the VA during an August 2024 telephone call that he had not seen any private doctors for his mental health treatment as a result of these incidents.

An April 2014 VA treatment record reflected the Veteran was seeking treatment for a mood disorder and the Veteran stated that he had been on and off medications for 20 years, which was approximately 12 years after separation from service. A July 2014 VA mental health record reflected the Veteran had mood disorder and possibly bipolar II disorder. A June 2015 VA mental illness treatment record noted the Veteran stated that he had treatment for bipolar disorder for the previous five years and had been on anti-depressants for 19 years.

The Veteran further advised the provider that he had an associate of arts degree, worked in computer operations and data center for eight years, and then went into sales, construction, and database software. After 2000, he began to have sporadic employment as he had trouble with his mood which was approximately 16 years after separation from service.

The record reflected the Veteran sought VA follow up for mental illness care in October 2015 for mood disorder. See, also April, May, June 2015. An October 2016 VA record noted that the Veteran stated he had previously been seeing a provider through his medical insurance. These private records were not in the record. None of these post service treatment notes in the record supported a finding that the assaults and or mental health illness were incurred in service. See also, VA treatment records for March, June, August, and October 2016.

The Board finds that the evidence of record does not support a finding that Veteran had an inservice injury or illness relating to or resulting in mental illness. Thus, the second element of service connection has not been satisfied. As the second element of service connection on a direct basis has not been satisfied, there is no need to discuss the third element.

The Veteran has also asserted that his anxiety disorder was secondary to PTSD. The Veteran, however, has not
medical insurance. These private records were not in the record. None of these post service treatment notes in the record supported a finding that the assaults and or mental health illness were incurred in service. See also, VA treatment records for March, June, August, and October 2016.

The Veteran has also asserted that his anxiety disorder was secondary to PTSD. The Veteran, however, has not been diagnosed with PTSD. As noted above, secondary service connection may only be granted for a disability which is proximately due to or the result of an established service-connected disease. 38 C.F.R. §§ 3.310 (a)-(b); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Thus, the Board finds that the second element of service connection on a secondary basis has not been satisfied.

As the second element of service connection has not been satisfied on a direct or secondary basis, there is no need to evaluate the third element of service connection, the nexus requirement.

As the three elements of service connection on a direct and secondary basis have not been satisfied, the evidence is persuasively against the Veteran's claim. Accordingly, the evidence is not in approximate balance, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

5. Entitlement to service connection for persistent depressive disorder is denied.

The first element of service connection is a current disability. The record did not reflect that the Veteran was diagnosed with persistent depressive disorder. Thus, the first element of service connection has not been satisfied. As the first element has not been satisfied, there is no need to evaluate the remaining elements of service connection.

As the three elements of service connection have not been met, the persuasive weight of the evidence weighs against the finding of service connection for persistent depressive disorder.

The Board has considered the benefit of the doubt doctrine and determined it is not applicable. As the evidence is persuasively against the Veteran's claim for service connection for persistent depressive disorder, the evidence is not in approximate balance, and the benefit of the doubt rule does not apply. Therefore, the claim must be denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

6. Entitlement to service connection for degenerative changes of the right foot, first metatarsophalangeal joint, to include as secondary to a right knee injury with an ACL tear is denied.

7. Entitlement to service connection for left hip osteoarthritis, to include as secondary to right knee injury with ACL tear is denied.

The first element of service connection is a current disability. The January 2025 rating decision conceded a current disability of degenerative changes of the right foot, first metatarsophalangeal joint, and left hip arthritis. The Board is bound by these favorable findings. 38 C.F.R. § 3.104. Thus, the Board finds the first element of service connection, a current right foot and left hip condition, is satisfied.

The second element of service connection is an inservice injury or illness. The Veteran's service treatment records did not reflect any foot or hip injuries. While the Veteran's March 1982 service treatment record reflected right knee pain, the Veteran does not have a service-connected right knee disability. As noted above, secondary service connection may only be granted for a disability which is proximately due to or the result of an established service-connected disease. 38 C.F.R. §§ 3.310 (a)-(b); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).

The Veteran first complained of left hip pain and right foot pain in August 2024. The VA examiner noted there was no history of an injury to the right foot or left hip, and the Veteran complained that the pain for both the hip and foot began three months prior. As the August 2024 VA treatment records are the first evidence of a right foot or left hip issue, and the Veteran stated such pain began in 2024, there is no evidence
or the result of an established service-connected disease. 38 C.F.R. §§ 3.310 (a)-(b); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).

The Veteran first complained of left hip pain and right foot pain in August 2024. The VA examiner noted there was no history of an injury to the right foot or left hip, and the Veteran complained that the pain for both the hip and foot began three months prior. As the August 2024 VA treatment records are the first evidence of a right foot or left hip issue, and the Veteran stated such pain began in 2024, there is no evidence of an inservice injury or evidence of chronicity of symptomatology.

As noted above, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases, such as arthritis, listed in 38 C.F.R. § 3.309 (a). In this case, there were no hip or foot symptoms reported in service and the right foot and left hip pain began in 2024, approximately 40 years after service.

The Board finds that the second element of service connection, an inservice injury or illness, on a direct and secondary basis has not been satisfied. As the second element has not been satisfied, there is no need to evaluate the third element of service connection, the nexus requirement.

As the three elements of service connection have not been met, the persuasive weight of the evidence weighs against the finding of service connection for a right foot and left hip condition.

The Board is aware that VA foot and hip examinations were not conducted. The VA is not obligated to provide an examination for a medical nexus opinion where there is no supporting nexus evidence in the record. 38 U.S.C. § 5103A(d)(2)A and B; McLendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512, 519 (2004). The claimant's own conclusory lay assertion alone is not sufficient to render a VA examination or opinion necessary and does not trigger VA's duty to obtain a medical opinion to decide the claims. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

The Board has considered the benefit of the doubt doctrine and determined it is not applicable. As the evidence is persuasively against the Veteran's claim for service connection for a right foot and left hip condition, the evidence is not in approximate balance, and the benefit of the doubt rule does not apply. Therefore, these claims must be denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

8. Entitlement to an evaluation in excess of zero percent for right ear hearing loss is denied.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone dec
more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four.

Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85.

There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral, determined from Table VI or Table VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86.

When Veteran underwent a VA examination in July 2024, the audiological evaluation pure tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000 Average

RIGHT 25 60 75 70 57.50

Speech audiometry revealed speech recognition ability of 94 percent in the right ear.

Applying the results to Table VI, the findings yield a numeric designation of Level I for the right ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the unrated left ear to 38 C.F.R. § 4.85, Table VII equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of right ear hearing impairment under 38 C.F.R. § 4.86 was not shown.

As the July 2024 testing results noted above do not yield findings to support an assignment of a compensable rating for right ear hearing loss, the Veteran is not entitled to a compensable rating for right ear hearing loss. 38 C.F.R. §§ 4.7, 4.21.

The Board acknowledges the Veteran's statements regarding the impact of his hearing loss on his daily activities. The Board also acknowledges VA's obligation to resolve all reasonable doubt in the Veteran's favor. However, as noted previously because assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (finding that when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.

Applying the audiological test results to the regulatory criteria, the Board is compelled to conclude that the evidence is persuasively against entitlement to a compensable rating. Thus, there is no reasonable doubt to be resolved, and this claim must be denied.

9. Entitlement to a tinnitus evaluation in excess of 10 percent is denied.

The Veteran is currently evaluated at 10 percent for tinnitus which is the maximum amount permitted under VA regulations. Accordingly, the persuasive weight of the evidence weighs against a finding that the Veteran is entitled to a
various contexts, those effects are contemplated by the schedular rating criteria); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.

9. Entitlement to a tinnitus evaluation in excess of 10 percent is denied.

(continued on next page)

The Board has considered the benefit of the doubt doctrine and determined it is not applicable. As the evidence is persuasively against the Veteran's claim for a tinnitus evaluation in excess of 10 percent, the evidence is not in approximate balance, and the benefit of the doubt rule does not apply. Therefore, the claim must be denied. See 38 U.S.C. § 5107(b); 38 CFR § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board W. Polk

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