SINUSITIS

NEELY M. PEDEN · 2026 · Case ID: A26026606

MIXED

Summary

The Veteran served from October 2002 to July 2006. The Veteran appeals multiple decisions from January, June, July, November 2024, and November 2024, concerning service connection for various conditions and effective dates. The primary issues on appeal include sinusitis, allergic rhinitis with deviated nasal septum, erectile dysfunction (ED), bilateral metatarsalgia, left ankle disability, sleep apnea, fatigue, shortness of breath, and higher-level Special Monthly Compensation (SMC). The Board granted service connection for sinusitis, resolving all reasonable doubt in the Veteran's favor due to an approximate balance of evidence. However, claims for earlier effective dates for allergic rhinitis and ED, as well as a higher rating for deviated nasal septum with allergic rhinitis, ED, and higher-level SMC, were denied due to insufficient evidence or failure to meet criteria. The Board remanded claims for bilateral metatarsalgia, left ankle disability, sleep apnea, fatigue, and shortness of breath due to the VA's failure to provide adequate examinations and nexus opinions for these conditions, specifically noting the examiner's failure to address the Veteran's reported in-service injury and the potential link between his PTSD/TBI and the foot/ankle conditions.

Rationale

Resolved all reasonable doubt in Veteran's favor; Approximate balance of positive and negative evidence

Special Benefit

SMC

Diagnostic Code

6512

Docket No.

250113-508096

Full Decision Text

Citation Nr: A26026606
Decision Date: 03/25/26 Archive Date: 03/25/26

DOCKET NO. 250113-508096
DATE: March 25, 2026

ORDER

Entitlement to service connection for sinusitis is granted.

Entitlement to an effective date earlier than September 21, 2022, for the grant service connection for allergic rhinitis is denied.

Entitlement to an effective date earlier than July 25, 2024, for the grant of entitlement to service connection for erectile dysfunction (ED) is denied.

Entitlement to an effective date earlier than July 25, 2024, for the grant of special monthly compensation (SMC) based on loss of use of a creative organ is denied.

Entitlement to a rating in excess of 10 percent for deviated nasal septum with allergic rhinitis is denied.

Entitlement to a compensable rating for ED is denied.

Entitlement to a higher level of SMC is denied.

REMANDED

Entitlement to service connection for bilateral metatarsalgia is remanded.

Entitlement to service connection for a left ankle disability is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for fatigue and shortness of breath is remanded.

FINDINGS OF FACT

1. Resolving all reasonable doubt in the Veteran's favor, there is at least an approximate balance of positive and negative evidence with respect to the question of whether the Veteran's sinusitis is related to military service.

A September 2025 rating decision combined the Veteran's service connected allergic rhinitis with his service connected deviated nasal septum to avoid pyramiding of the same problem twice.

The Veteran submitted an intent to file a claim on July 25, 2024, and submitted his formal claim for entitlement to service connection for ED on July 30, 2024.

Prior to July 25, 2024, there was no formal or informal claim for service connection for ED or SMC(k).

Prior to July 25, 2024, neither entitlement to service connection for ED, nor a claim for SMC(K), were reasonably raised or within the scope of the claim for entitlement to service connection for posttraumatic stress disorder (PTSD).

The evidence does not demonstrate that at any time during the period on appeal the Veteran's deviated nasal septum with allergic rhinitis has been productive of greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, nor does not the evidence show the Veteran has polyps.

There is no evidence of penile deformity associated with the Veteran's service-connected ED.

The evidence does not show that the Veteran is entitled to a higher level of SMC.

CONCLUSIONS OF LAW

The criteria for entitlement to service connection for sinusitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

The criteria for entitlement to an effective date earlier than September 21, 2022 for the grant of service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 501, 1110, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.160, 3.114, 3.156, 3.303, 3.320, 3.400, 20.201, 20.202.

The criteria for entitlement to an effective date prior to July 25, 2024 for the grant of entitlement to service connection for ED have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.160, 3.400.

The criteria for an effective date prior to July 25, 2024 for the award of SMC(k), are not met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.102, 3.400.

The criteria for entitlement to a rating in excess of 10 percent for deviated nasal septum with allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6522-6502.

The criteria for entitlement to a compensable disability rating for ED are not met. 38 U.S.C. §§ 1155, 5107;
U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.102, 3.400.

The criteria for entitlement to a compensable disability rating for ED are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.31, 4.115b, DC 7522.

The criteria for entitlement to a higher level of SMC have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2002 to July 2006.

These matters come before the Board on appeal of January 2024, June 2024, July 2024, November 15, 2024, and November 27, 2024 supplemental claim rating decisions of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The January 2024 rating decision granted service connection for allergic rhinitis effective September 21, 2022, assigning a 0 percent rating, and denied service connection for sinusitis. The June 2024 rating decision denied service connection for fatigue and shortness of breath. The July 2024 rating decision denied service connection for sleep apnea. The November 15, 2024 rating decision denied service connection for a left ankle disability. The November 27, 2024 rating decision granted service connection for ED effective July 25, 2024, assigning a 0 percent rating, granted entitlement to SMC effective July 25, 2024 for loss of use of a creative organ, denied service connection for bilateral metatarsalgia, and confirmed and continued the level of SMC.

In January 2025, the Veteran filed VA Form 10182 Decision Review Request, Board Appeal, Notice of Disagreement, under the Appeals Modernization Act (AMA), and selected direct review. The Veteran is advised that under direct review the Board is only able to consider evidence received as of, and prior to, the January 2024, June 2024, July 2024, November 15, 2024, and November 27, 2024 rating decisions, as applicable to the particular issue being considered. Any evidence received after the January 2024, June 2024, July 2024, November 15, 2024, and November 27, 2024 rating decisions cannot be considered. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claim. 38 C.F.R. § 20.300. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant 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.

However, as remand is warranted for the issues of entitlement to service connection for bilateral metatarsalgia, a left ankle disability, sleep apnea, and fatigue and shortness of breath, any new evidence associated with the case file concerning those issues will be considered by the AOJ on remand.

The Board notes that any favorable findings made by an AOJ, or any other prior VA adjudicator, is binding on the Board. As the January 2024, June 2024, July 2024, November 15, 2024, and November 27, 2024 supplemental claim rating decisions addressed the merits of the issues, the Board infers the AOJ determined there was new and relevant evidence to readjudicate the claims. As such, the Board will not address the issue of new and relevant evidence to readjudicate the claims, but acknowledges favorable findings of sufficient new and relevant evidence is of record to proceed to the merits of the issues
file concerning those issues will be considered by the AOJ on remand.

Service Connection

Entitlement to service connection for sinusitis.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

The Veteran contends that his sinusitis should be service connected because it was caused by a maxillary sinus fracture which occurred during military service.

Service treatment records reflect a December 2005 notation that the Veteran should take precautions with his sinus cavity because of injury, and a separate December 2005 notation reflects a diagnosis of left maxillary sinus injury. Medical treatment records similarly note the Veteran's complaints of his sinus injury residuals without nexus opinion.

In October 2017, the Veteran was afforded a VA sinusitis examination. The examiner recognized a diagnosis of chronic sinusitis. It was noted that the onset of the symptoms began in July 2000. It was noted that the Veteran reported the symptoms began due to his facial fractures sustained in the military. The examiner opined that it is less likely than not that the sinusitis is related to military service. The rationale was that the June 2006 separation examination did not show that the Veteran had a diagnosis of sinusitis, and there are no medical records that pertain to sinusitis following separation. Additionally, the Veteran was assessed with right maxillary sinusitis, and the orbital fracture was on the left, so the current right maxillary sinusitis is less likely related to the in-service fracture.

In December 2017, the Veteran was afforded another VA sinusitis examination. The examiner acknowledged a diagnosis of chronic sinusitis. It was indicated that the onset of the condition was December 2005. The Veteran reported that the symptoms began after sustaining a facial fracture in service. The examiner opined that it is at least as likely as not that the diagnosed chronic sinusitis was caused by the facial fracture the Veteran sustained during military service. The December 2017 based this opinion on the April 2017 CT of the head that showed chronic left orbital blowout fracture with mild mucosal thickening of the bilateral maxillary sinuses.

In June 2021, another VA sinusitis opinion was obtained. The examiner opined that it is less likely than not that the Veteran's sinusitis is related to military service. The rationale was that there was no diagnosis of sinusitis upon separation and no documented continuous care post-service. The June 2021 examiner also rationalized that the Veteran sustained a left orbital fracture and the x-ray in 2017 is consistent with a right maxillary sinus which does not correlate to the left sided injury. The June 2021 examiner did not provide any medical analysis explaining why a left sinus fracture would have no impact on the right sinus fracture. Moreover, the examiner did not acknowledge that the April 2017 CT scan of the head showed bilateral mucosal thickening.

In August 2021 and December 2023, VA sinusitis opinions were obtained. Those examiners determined that the Veteran had no diagnosis of sinusitis.

In March 2023,
diagnosis of sinusitis upon separation and no documented continuous care post-service. The June 2021 examiner also rationalized that the Veteran sustained a left orbital fracture and the x-ray in 2017 is consistent with a right maxillary sinus which does not correlate to the left sided injury. The June 2021 examiner did not provide any medical analysis explaining why a left sinus fracture would have no impact on the right sinus fracture. Moreover, the examiner did not acknowledge that the April 2017 CT scan of the head showed bilateral mucosal thickening.

In August 2021 and December 2023, VA sinusitis opinions were obtained. Those examiners determined that the Veteran had no diagnosis of sinusitis.

In March 2023, the Veteran was provided a VA sinusitis and rhinitis examination concerning his deviated septum. It was noted that since his facial injury in service he continued to feel nasal passage blockage accompanied by constant rhinorrhea.

After review of the evidence of record, the Board finds that service connection for sinusitis is warranted. Although several medical opinions are of record, the Board finds many of the opinions are unable to be relied on. The October 2017 examination report provided a negative nexus opinion, but no medical explanation of why a left maxillary sinus fracture would have no impact on the right maxillary sinus. As such, this was a conclusory opinion without any medical analysis to support it. See Nieves-Rodriguez. The June 2021 examination report also provided a negative nexus opinion but based its opinion on the lack of diagnosis upon military separation. The Board notes that a lack of evidence cannot be used to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the August 2021 and December 2023 VA examination reports provided negative nexus opinions and cited a lack of diagnosis of sinusitis. As this directly contradicts other contemporary reports and medical evidence, the Board does not find these opinions persuasive.

However, the December 2017 examination report considered and addressed medical evidence that demonstrated the Veteran's bilateral maxillary sinuses had mucosal thickening, reviewed and accurately reported the Veteran's medical records and service treatment records, and based its opinion on contemporary medical evidence of the Veteran's condition. As such, the Board finds that the December 2017 examiner's opinion is highly probative. This evidence is also most consistent with the medical evidence of record.

The Board finds that the positive opinion of the December 2017 examiner is the most probative evidence of record concerning whether there is a nexus between the Veteran's diagnosed sinusitis and military service. Therefore, there is at least an approximate balance of positive and negative evidence with respect to the question of whether the Veteran's sinusitis is related to service. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Accordingly, having resolved doubt in favor of the Veteran, entitlement to service connection for sinusitis is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Effective Dates

For appeals governed by the AMA, 38 C.F.R. § 3.2500 (h) controls the assignment of effective dates. Under that provision, the effective date will be the date VA received a veteran's initial claim or the date entitlement arose, whichever is later, if a veteran continuously pursues an issue by timely filing in succession any of the available review options as specified in § 3.2500(c) within one year of the issuance of the decision. 38 C.F.R. § 3.2500 (h). Applicable laws and regulations define an initial claim as any complete claim, other than a supplemental claim, for a benefit on a form prescribed by the Secretary. 38 C.F.R. § 3.1 (p)(1). A first initial claim for one or more benefits received by VA is further defined as an original claim. 38 C.F.R. § 3.160 (b).

2. Entitlement to an effective date earlier than September 21, 2022, for the grant service connection for allergic rhinitis.

The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for allergic rhinitis. The January 2024 rating decision granted service connection for allergic rhinitis under 38 C.F.R. § 3.320 and assigned an effective date of September 21, 2022. A September 2025 rating decision found a clear and unmistakable error and combined the rating for service-connected allergic rhinitis with service-connected deviated nasal septum. This resulted in the effective date of the now combined disability of deviated nasal septum and allergic rhinitis
2. Entitlement to an effective date earlier than September 21, 2022, for the grant service connection for allergic rhinitis.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For veterans who served in the Southwest Asia theater of operations during the Persian Gulf Era, service connection may be presumed for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2).

Effective August 5, 2021, VA issued an interim final rule to amend its regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e. asthma, rhinitis, and sinusitis, (to include rhinosinusitis), with presumed exposure to fine, particulate matter.

Essentially, as added, 38 C.F.R. § 3.320 establishes a presumption of service connection for veterans who served in the Southwest Asia Theater of operations and Afghanistan during the Persian Gulf War Era and have a diagnosis of certain diseases listed (to include rhinitis and sinusitis), even though there is no record of such disease during service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation. See 38 C.F.R. § 3.320. This provision applies to claims pending before VA on the effective date of the rule. See 38 C.F.R. § 3.160.

According to 38 C.F.R. § 3.114(a)(1), where compensation is awarded pursuant to a liberalizing law or regulation, and if a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue, but not earlier.

In other words, if the VA received a claim prior to the liberalizing law's effective date, and the claim is granted based on the liberalizing law and not on a facts-found basis, then the later liberalizing law's effective date is the controlling date in awarding service connection. 38 C.F.R. § 3.400. Likewise, if a claim was received after the liberalizing law's effective date, then the controlling date for an award of service connection would be the date the claim was received since that is the later date, as instructed under 38 C.F.R. § 3.4.

A December 2023 a VA allergic rhinitis nexus opinion specifically determined the Veteran's allergic rhinitis was at least as likely as not caused by toxic exposure risk activity (TERA) during military service. The Veteran submitted his claim for entitlement to service connection for allergic rhinitis on September 21, 2023, and was assigned the effective date for the grant of service connection for allergic rhinitis as of September 21, 2022, one year prior to submission of the claim for service connection. When a claim of service connection is received more than one year after a change in law, and all the requirements were met for a grant on
, as instructed under 38 C.F.R. § 3.4.

Turning to the effective date assigned for the grant of separate service connection for the Veteran's allergic rhinitis, the Board finds that an effective date earlier than the currently assigned September 21, 2022, must be denied because, as recognized by the RO in a September 2025 rating decision, that separate award constitutes pyramiding where, as here, a Veteran is also in receipt of a compensable rating under Diagnostic Code 6522 for deviated nasal septum, which now includes allergic rhinitis. 38 C.F.R. § 4.14 ("[t]he evaluation of the same disability under various diagnoses," a practice called "pyramiding," "is to be avoided").

In other words, for the period on appeal, because the Veteran is now in receipt of a compensable rating for his deviated septum disability under Diagnostic Code 6522-6502, which contemplates allergic rhinitis, the award of separate service connection with an additional rating based on allergic rhinitis during that same period is prohibited, as such an award would constitute pyramiding. 38 C.F.R. § 4.14. Thus, an earlier effective date for service connection for allergic rhinitis is denied.

Entitlement to an effective date prior to July 25, 2024, for the grant of entitlement to service connection for ED

The Veteran contends that he is entitled to an effective date prior to July 25, 2024 for the grant of service connection for ED.

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amended regulations apply to claims filed on or after March 24, 2015. As of March 24, 2015, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. §§ 3.155, 3.160.

On July 25, 2024, the Veteran submitted an intent to file a claim. On July 30, 2024, the Veteran submitted his formal claim for service connection for ED. Therefore, the Veteran's claim for service connection for ED is considered filed as of July 25, 2024. Based on this evidence, the AOJ assigned the effective date for the grant of service connection for ED as of the date of receipt of claim, July 25, 2024. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

The Board has considered whether it is appropriate to assign an effective date prior to July 25, 2024. The Board recognizes that for claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant may be considered an informal claim. 38 U.S.C. § 501(a); 38 C.F.R. § 3.155(a). Under 38 C.F.R. § 3.157, an informal claim may consist of a VA
0; 38 C.F.R. § 3.400.

Upon review of the evidence, the Board was unable to identify any VA medical records, dated prior to March 24, 2015, that indicated the Veteran had a diagnosis of ED which could potentially be construed as an informal claim. The Board is also cognizant that for decisions on or after July 21, 1992, VA treatment records are in constructive possession of VA adjudicators on the date they were created, regardless of whether they were physically in the claims file. Bell v. Derwinski, 2 Vet .App. 611, 612-13 (1992).

The Board acknowledges that the August 2024 VA ED opinion determined that the Veteran's ED is secondary to his service connected PTSD. Therefore, the Board considered whether the claim of entitlement to service connection for ED was reasonably raised within the scope of the claim for entitlement to service connection for PTSD. 38 C.F.R. § 3.155(d)(2) directs VA to consider as part of a Veteran's claim for benefits "entitlement to any ancillary benefits that arise as a result of the adjudication decision." Additionally, the "claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed." VA must "consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition." Id. However, no evidence shows that the issue of entitlement to service connection for ED was raised as part of the claim for service connection for PTSD.

The Board also notes that primary and secondary service connection claims are distinct for effective date purposes. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008). Ellington explains that, although a secondary condition is considered "part of the original condition" under 38 C.F.R. § 3.310, that "does not... establish that the original condition and the secondary condition must receive identical effective dates." Id. at 1369. Here, there is no evidence to support that a formal or informal claim for entitlement to service connection for ED was received prior to July 25, 2024. Therefore, the Board finds that July 25, 2024 is the appropriate effective date for the grant of entitlement to service connection for ED.

Accordingly, entitlement to an effective date prior to July 25, 2024 for the grant of entitlement to service connection for ED is denied. As the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Entitlement to an effective date prior to July 25, 2024 for the grant of SMC based on loss of use of a creative organ

The Veteran's assignment of the effective date of July 25, 2024 for the grant of SMC based on loss of use of a creative organ under 38 U.S.C. § 1114(k) was based on the Veteran's entitlement to service connection for ED. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, the Veteran cannot be assigned an effective date prior to the effective date for the grant of service connection for ED. For the same reasons discussed above, concerning the appropriate effective date for the grant of service connection for ED, July 25, 2024 is the appropriate effective date for the grant of entitlement to SMC based on loss of use of a creative organ under 38 U.S.C. § 1114(k).

Accordingly, entitlement to an effective date prior to July 25, 2024
.S.C. § 1114(k) was based on the Veteran's entitlement to service connection for ED. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, the Veteran cannot be assigned an effective date prior to the effective date for the grant of service connection for ED. For the same reasons discussed above, concerning the appropriate effective date for the grant of service connection for ED, July 25, 2024 is the appropriate effective date for the grant of entitlement to SMC based on loss of use of a creative organ under 38 U.S.C. § 1114(k).

Accordingly, entitlement to an effective date prior to July 25, 2024, for the grant of SMC based on loss of use of a creative organ is denied. As the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert.

Increased Ratings

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

5. Entitlement to an initial compensable rating for allergic rhinitis

The Veteran contends that he is entitled to a compensable rating for his allergic rhinitis.

The Veteran is currently assigned a 10 percent rating for deviated nasal septum with allergic rhinitis under 38 C.F.R. § 4.97, DC 6522-6502. Diagnostic Code 6522 provides that a 10 percent rating is warranted for allergic or vasomotor rhinitis, without polyps, but greater than 50 percent obstruction of nasal passage on both sides or complete obstruction of one side. A maximum of 30 percent is assignable for allergic or vasomotor rhinitis with polyps. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

Under Diagnostic Code 6502, a 10 percent rating is warranted for deviation of the nasal septum involving 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.

A December 2023 VA examination report determined the Veteran has a diagnosis of allergic rhinitis. The Veteran reported that the allergic rhinitis began in 2006 while in the Middle East. He also explained that he had a blunt force trauma to the face that resulted in a deviated septum. He reported that his symptoms include nasal congestion, runny nose, and post nasal drip. Upon examination, the examiner found that the Veteran had no greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. It was also indicated that he had no complete obstruction and no nasal polyps.

A June 2023 VA examination found the Veteran's deviated nasal septum had a greater than 50% obstruction of the nasal passage on both sides.

The evidence persuasively weighs in favor of establishing rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides. This approximates the criteria for a 10 percent rating under Diagnostic Code 6522. A rating in excess of 10 percent is not warranted for the period on appeal as the evidence does not persuasively show polyps. VA treatment records and the VA examinations of record do not reveal polyps.

The Board has also considered the applicability of alternative diagnostic codes for rating this service-connected disability. However, because allergic rhinitis and deviated septum have specific codes, Diagnostic Codes 6502 and 6522, rating by analogy under other codes is not permissible. When a condition is specifically listed in the Rating Schedule, it may not be rated by analogy
but with greater than 50-percent obstruction of nasal passage on both sides. This approximates the criteria for a 10 percent rating under Diagnostic Code 6522. A rating in excess of 10 percent is not warranted for the period on appeal as the evidence does not persuasively show polyps. VA treatment records and the VA examinations of record do not reveal polyps.

The Board has also considered the applicability of alternative diagnostic codes for rating this service-connected disability. However, because allergic rhinitis and deviated septum have specific codes, Diagnostic Codes 6502 and 6522, rating by analogy under other codes is not permissible. When a condition is specifically listed in the Rating Schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2014). Epistaxis is typically rated by analogy to Diagnostic Code 6502. Further, the Veteran is already separately service-connected herein for sinusitis. Thus, using the criteria under Diagnostic Code 6512 and the General Rating Formula for Sinusitis to evaluate his service-connected allergic rhinitis with deviated nasal septum would violate the rules against pyramiding.

Accordingly, entitlement to a rating in excess of 10 percent for nasal deviated septum with allergic rhinitis is denied. As the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert.

6. Entitlement to an initial compensable rating for ED.

VA has rated the Veteran's ED as noncompensable under 38 C.F.R. § 4.115b, DC 7522. Under DC 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under this DC. The Board notes that, pursuant to 38 C.F.R. § 4.31, when the rating schedule does not provide a zero percent rating for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. The Board further notes that no other schedular criteria apply to ED.

The Board finds that the Veteran's penis is medically unremarkable. The Veteran does not claim, nor does the evidence show, a penile deformity. In fact, at the August 2024 VA male reproductive organ conditions examination, the Veteran reported that he had normal anatomy of the penis with no penile deformity or abnormality.

Based on the foregoing, the Veteran does not merit a compensable rating for ED, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990).

SMC

7. Entitlement to a higher level of SMC.

The Veteran contends that he is entitled to a higher level of SMC due to a special level of disability.

SMC under 38 U.S.C. § 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, the anatomical loss of one or both breasts (including loss by mastectomy). Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(a).

The SMC provided by 38 U.S.C. § 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance.

The SMC provided by 38 U.S.C. § 1114(m) is payable for any of the following conditions:

(i) Anatomical loss or loss of use of both hands
, could be accomplished equally well by an amputation stump with prosthesis. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(a).

The SMC provided by 38 U.S.C. § 1114(m) is payable for any of the following conditions:

(i) Anatomical loss or loss of use of both hands;

(ii) Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place;

(iii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place;

(iv) Blindness in both eyes having only light perception;

(v) Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.

In determining whether there is natural elbow or knee action with prosthesis in place, consideration will be based on whether use of the proper prosthetic appliance requires natural use of the joint, or whether necessary motion is otherwise controlled, so that the muscles affecting joint motion, if not already atrophied, will become so. If there is no movement in the joint, as in ankylosis or complete paralysis, use of prosthesis is not to be expected, and the determination will be as though there were one in place. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(c).

The SMC provided by 38 U.S.C. § 1114(n) is payable for anatomical loss or loss of use of both arms at a level or with complications, preventing natural elbow action with prosthesis in place; anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance; anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance; anatomical loss of both eyes or blindness without light perception in both eyes. Amputation is a prerequisite except for loss of use of both arms and blindness without light perception in both eyes. If a prosthesis cannot be worn at the present level of amputation but could be applied if there were a reamputation at a higher level, the requirements of this paragraph are not met; instead, consideration will be given to loss of natural elbow or knee action. 38 U.S.C. § 1114; 38 C.F.R. § 3.350(d).

The SMC provided by 38 U.S.C. § 1114(o) is payable for anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114(l) through (n); bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 5/200 or less; service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less.

Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. § 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control may be met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures.

Determinations for entitlement under 38 U.S.C. § 1114(o) must be based upon separate and distinct disabilities. This requires, for example, that where a Veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities.

If the loss or loss of use of two extremities or being permanently bedridden leaves
of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control may be met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures.

If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement.

The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.

In addition to the statutory rates payable under 38 U.S.C. § 1114 (l) through (n) and the intermediate or next higher rate provisions, additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. § 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f)(3).

The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. An intermediate rate authorized by this paragraph shall be established at the arithmetic mean, rounded to the nearest dollar, between the two rates concerned. 38 U.S.C. § 1114(p).

In addition to the statutory rates payable under 38 U.S.C. § 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate.

In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions outlined above.

A Veteran receiving the maximum rate under 38 U.S.C. § 1114 (o) or (p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. Determination of this need is subject to the criteria of § 3.352.

The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher
in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. Determination of this need is subject to the criteria of § 3.352.

The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114 (o) or (p), or was based on an independent factual determination.

The amount of the additional allowance payable to a Veteran in need of regular aid and attendance payable to a Veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2).

The higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1).

Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of claimant to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. It is only necessary that the evidence establish that the Veteran is so helpless as to be in need of regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352.

SMC is payable at a specified rate under 38 U.S.C. § 1114(s) when a Veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound due to a service-connected disability or disabilities. 38 C.F.R. § 3.350(i).

SMC is payable for need of regular aid and attendance for the residuals of a traumatic brain injury and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the Veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in 38 U.S.C. § 1114(r)(2). 38 U.S.C. § 1114(t).

The Veteran is currently in receipt of SMC loss of use of a creative organ under 38 U.S.C. § 1114(k). Entitlement to additional compensation under 1114(k) is not payable because the evidence does not show that the Veteran has anatomical loss or loss of use of one hand, one foot, both buttocks, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, or complete organic aphonia with constant inability to communicate by speech.

The Board acknowledges that the Veteran is service connected for residual diplopia due to a left orbital fracture. However, VA eye examinations from February 2018 and November 2022 both show that the Veteran does not have blindness of the left eye having only light perception.

The Board also recognizes that the Veteran has claimed service connection for bilateral metatarsalgia and a left ankle disability, which are both being remanded. Nonetheless
the evidence does not show that the Veteran has anatomical loss or loss of use of one hand, one foot, both buttocks, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, or complete organic aphonia with constant inability to communicate by speech.

The Board also recognizes that the Veteran has claimed service connection for bilateral metatarsalgia and a left ankle disability, which are both being remanded. Nonetheless, the evidence does not show that either of those conditions are consistent with no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The July 2024 statement from the Veteran relates that he has difficulty standing and walking due to foot pain. The VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, received in August 2024, indicates that the Veteran has difficulty with ambulation due to foot pain. This evidence does not support that he would be equally well served by an amputation with prosthetic appliance. Although he does have pain in the feet making standing and walking difficult at times, the August 2024 VA foot examination does not show that he requires any assistive devices and he is only limited by prolonged walking or standing.

The November 2020 VA ankle examination shows that it was determined the Veteran's diagnosed left lateral collateral ligament sprain does not result in functional impairment such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. Likewise, the August 2024 VA foot examination opined that the diagnosed bilateral metatarsalgia does not result in functional impairment such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. Thus, even if the Veteran's bilateral metatarsalgia and left ankle disability were to be granted service connection, entitlement to SMC for those conditions would not be warranted.

The Veteran is also currently receiving SMC under 1114(s) based on statutory housebound status.

In September 2020, the Veteran submitted a statement explaining that his PTSD and traumatic brain injury symptoms were causing him to have poor judgment and that he needed help with everything. However, the evidence does not show that the Veteran has required hospitalization, nursing home care, or other residential institutional care to qualify for SMC related to his traumatic brain injury under 38 U.S.C. § 1114(t).

The Veteran's girlfriend explained in a statement received in September 2020 that the Veteran had daily difficulties with leaving keys in the door, short temper in stressful situations, road rage, putting himself in harm's way, having no filter when talking to people, always being defensive and paranoid, having awful judgment that could cause harm to himself, being dependent on her for taking medications, keeping appointments, and cooking. She also stated that the Veteran did not want to leave the house, was always in pain, had to be reminded to eat and bathe, needed guidance on protecting himself from hazards, and he had anxiety grocery shopping.

However, the evidence does not support that the Veteran requires regular aid and attendance. As set out above, aid and attendance benefits may be awarded when a claimant is blind in both eyes having visual acuity of 5/200 or less, or has contraction of the visual field to 5 degrees or less; is a patient in a nursing home because of mental or physical incapacity; or, when the evidence shows aid and attendance is required to perform routine activities of daily living. The routine activities of daily living are basic self-care tasks which include such things as the ability to dress or undress one's self, to keep one's self ordinarily clean and presentable, ability to feed one's self, the ability to attend to the needs of nature, or the ability to protect one's self from the hazards or dangers incident to his or her daily environment.

The August 2024 VA Form 21-2680 noted that the Veteran is not legally blind, does not require nursing home care, and only has mild restriction of range of motion. He was observed to have erect posture, and be neat and clean. It was not indicated that the Veteran was bedridden, or was in need of assistance with bathing or showering, eating, dressing, ambulating, tending to hygiene needs, transferring in or out of a bed or chair, toileting, medication management, or additional activities. It was also found that he had the mental capacity to manage his financial
to the needs of nature, or the ability to protect one's self from the hazards or dangers incident to his or her daily environment.

The August 2024 VA Form 21-2680 noted that the Veteran is not legally blind, does not require nursing home care, and only has mild restriction of range of motion. He was observed to have erect posture, and be neat and clean. It was not indicated that the Veteran was bedridden, or was in need of assistance with bathing or showering, eating, dressing, ambulating, tending to hygiene needs, transferring in or out of a bed or chair, toileting, medication management, or additional activities. It was also found that he had the mental capacity to manage his financial affairs, had no bowel or bladder control issues, had no restrictions on leaving the home, and had no need for an assistive device for locomotion.

The evidence does not support that the Veteran has been in a state of helplessness, or that aid and assistance has been regularly required to perform routine activities of daily living. Although the August 2024 VA Form 21-2680 noted that he had some fine motor skills difficulties due to his eyesight, this was not shown to hinder his ability to care for himself. Additionally, it was noted that the pain in his feet caused difficulties with ambulation, but he required no assistive devices for locomotion. Although the Veteran relied on his girlfriend for certain tasks, or needed occasional reminding of things, the evidence does not show the need for regular aid and attendance.

The Board acknowledges that the Veteran's girlfriend expressed worry about him and that she helped him complete certain responsibilities. However, in a statement from the Veteran, received in September 2020, he indicated that his longtime girlfriend had left him. There is no evidence suggesting that the Veteran was unable to care for himself after his girlfriend left, and he has not been shown to need in home care to attend to his needs. Therefore, based on the evidence, entitlement to a higher level of SMC is not currently warranted.

The Board acknowledges that the symptomology from the Veteran's service connected disabilities presents significant difficulties, which is the very reason the Veteran is in receipt of SMC 1114(k) and 1114(s). However, the Board finds the evidence does not demonstrate that the Veteran meets the requirements for a higher level of SMC than that currently received.

Accordingly, entitlement to a higher level of SMC is denied. As the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert.

REASONS FOR REMAND

Entitlement to service connection for bilateral metatarsalgia is remanded.

Entitlement to service connection for a left ankle disability is remanded.

Under the AMA framework, the Board may remand where there has been a duty to assist error prior to issuance of a rating decision. While the Board regrets the additional delay, due to the VA's failure to assist, the Veteran's claims for service connection must be remanded. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159(c). As part of that duty to assist, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran contends that his bilateral metatarsalgia and left ankle disability should be service connected because his bilateral foot condition and ankle disability began because his service connected PTSD and traumatic brain injury have caused him to have poor judgment, which lead him to jump off a 10 foot roof onto concrete shattering his ankle and injuring his feet. See Veteran Statement, July 2024.

In November 2020, the Veteran was afforded a VA ankle examination. The examiner provided a diagnosis of left lateral collateral ligament sprain. The Veteran reported that the condition began when he jumped off a roof. The examiner opined that it is less likely than not that the left ankle disability is proximately due to the Veteran's service connected PTSD or traumatic brain injury. The rationale for the opinion was that there is no evidence of a diagnosis of left ankle arthritis. However, the examiner provided no nexus opinion concerning the diagnosed left lateral collateral ligament sprain. Therefore, the examiner did not adequately address whether the diagnosed ankle condition was caused by the Veteran's poor judgment of jumping off the roof.

In August 2024, the Veteran was provided a VA foot examination. The examiner recognized a diagnosis of bilateral metatarsalgia. The
a diagnosis of left lateral collateral ligament sprain. The Veteran reported that the condition began when he jumped off a roof. The examiner opined that it is less likely than not that the left ankle disability is proximately due to the Veteran's service connected PTSD or traumatic brain injury. The rationale for the opinion was that there is no evidence of a diagnosis of left ankle arthritis. However, the examiner provided no nexus opinion concerning the diagnosed left lateral collateral ligament sprain. Therefore, the examiner did not adequately address whether the diagnosed ankle condition was caused by the Veteran's poor judgment of jumping off the roof.

In August 2024, the Veteran was provided a VA foot examination. The examiner recognized a diagnosis of bilateral metatarsalgia. The Veteran related the onset of the bilateral foot symptoms to his jump off the roof in 2019. The examiner opined that it is less likely than not that the Veteran's bilateral metatarsalgia is less likely than not related to PTSD and traumatic brain injury. The August 2024 examiner characterized the Veteran's report of injury to his bilateral feet as a fall off of a roof. However, the evidence shows that the Veteran has reported that he jumped off the roof due to his poor judgment caused by his PTSD and traumatic brain injury. The August 2024 examiner seemed to accept that the Veteran's bilateral feet condition was related to incident of the roof, but then concluded the bilateral metatarsalgia is not related to service connected PTSD and traumatic brain injury.

An October 2020 VA PTSD examination noted that the Veteran attempted to jump off a roof and sustained physical injuries. Due to this incident, it was opined that the Veteran was at an increased but not current imminent risk of harm to himself. Thus, the October 2020 VA PTSD examination indicates that the Veteran jumping off the roof was indeed related to his service connected PTSD. This was not discussed by the October 2020 examiner nor the August 2024 examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board must find both the October 2020 VA ankle opinion and the August 2024 VA feet opinion to be inadequate. See Id.

Moreover, neither the October 2020 examiner, nor the August 2024 examiner, provided an opinion regarding whether the Veteran's left ankle disability or bilateral metatarsalgia were aggravated by the jump from the roof. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). A secondary opinion which addresses a causal relationship, but which does not address the question of aggravation, is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Thus, the October 2020 and August 2024 VA opinions are also inadequate in this regard.

Based on the foregoing, remand is warranted for further development.

Entitlement to service connection for sleep apnea is remanded.

The Veteran contends that his diagnosed sleep apnea should be service connected because it is directly related to the maxillary sinus fracture that he sustained during his military service, his sleep apnea symptoms began during military service and have continued since, and it was caused or aggravated by his service connected PTSD, to include medication and weight gain. See Veteran Statements, August 2017 and December 2020.

In August 2021, the Veteran was afforded a VA sleep apnea examination. The examiner recognized a diagnosis of obstructive sleep apnea, and noted an onset between 2002 to 2006. It was opined that it is less likely than not that the Veteran's sleep apnea is related to military service because a nexus has not been established. No explanation whatsoever was provided in rendering this conclusion. See Nieves-Rodriguez. Moreover, the August 2021 examiner did not provide opinions regarding whether the Veteran's sleep apnea was caused or aggravated by PTSD, to include medication for treatment and weight gain, as contended by the Veteran. See Stefl. Therefore, the Board must find the August 2021 VA opinion to be inadequate.

In April 2024, another VA sleep apnea opinion was obtain. That opinion dealt specifically with whether the Veteran's sleep apnea is related to TERA during military service. The examiner opined that it is less likely than not that the Veteran's sleep apnea was caused by TERA. In providing the opinion, the April 2024 examiner referenced a February 2023 TERA memorandum that determined the Veteran did not participate in TERA during service. However, the examiner did not recognize the October 2023 TERA memorandum that determined the Veteran did indeed participate in TERA during service.

Although the April 2024 examiner failed to recognize the
, the Board must find the August 2021 VA opinion to be inadequate.

Although the April 2024 examiner failed to recognize the October 2023 TERA memorandum, the Board points out that the AOJ did not provide any information in the October 2023 TERA memorandum concerning the specific exposures that were due to the Veteran's military occupational specialty, as an aviation boatswain's mate. His duties would have had him handling aircraft, which would have, at a minimum, exposed him to dirt, dust, oils, chemicals, exhaust, and jet fuel. Therefore, both the February 2023 and October 2023 TERA memorandums were inadequate. Given these circumstances, the examiner did not consider all of the Veteran's TERA in rendering the opinion. See Nieves-Rodriguez. As such, the Board must find the April 2024 VA sleep apnea opinion to be inadequate.

In June 2024, additional VA sleep apnea opinions were provided. The board notes that a new TERA memorandum was completed in June 2024, which acknowledged that the Veteran was deployed to the Persian Gulf and recognized the Veteran's exposure to asbestos. However, the TERA memorandum again failed to provide any specific toxic exposures concerning the Veteran's military occupational specialty for an examiner to consider. Therefore, the Board must find the June 2024 TERA memorandum to be inadequate. Given the information provided in the June 2024 TERA memorandum, as would be expected, the June 2024 examiner did not consider exposures due to the Veteran's military occupational specialty, such as oils, chemicals, exhaust, and jet fuel in rendering an opinion regarding the nexus between the Veteran's sleep apnea and his TERA. The June 2024 examiner indicated that airborne hazard and open burn pit and asbestos were the exposures considered. As such, not all TERA during military service was considered by the June 2024 examiner. Therefore, the Board must find the June 2024 VA sleep apnea opinion concerning TERA to be inadequate.

The June 2024 examiner also opined that it is less likely than not that the Veteran's sleep apnea is due to his deviated septum because a deviate septum does not cause sleep apnea. However, the examiner did not provide a direct service connection opinion addressing the Veteran's reports that his sleep apnea symptoms began during military service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Nor did the June 2024 examiner address the contention that the Veteran's sleep apnea is related to his service connect PTSD, to include medication and weight gain. See Stefl. Moreover, the June 2024 examiner did not provide an opinion concerning whether the Veteran's sleep apnea was aggravated by his deviated septum or PTSD. See El-Amin. The June 2024 examiner did note that being overweight is a risk factor for sleep apnea, but the Veteran's contention that his weight gain was caused by his PTSD, to include use of medications, was not discussed by the June 2024 examiner.

Therefore, the Board must find the June 2024 VA sleep apnea opinions to be inadequate.

Based on the foregoing, remand is warranted for further development.

Entitlement to service connection for fatigue and shortness of breath is remanded.

The Veteran contends that he should be service connected for fatigue and shortness of breath due to asbestos exposure during service, as well as due to his deviated septum caused by the maxillary sinus fracture in service. See Service Connection Claims, August 2015 and October 2023.

In June 2023, the Veteran was afforded a VA sinusitis and rhinitis examination. The examiner recognized a diagnosis of a deviated nasal septum. It was noted that the deviated septum caused sleep disturbances and difficulty breathing through the nostrils. No nexus opinion was provided concerning the Veteran's fatigue and shortness of breath.

In April 2024, the Veteran was provided a VA respiratory examination. The Veteran reported that he started having episodes of shortness of breath since separation of service. He endorsed chronic coughing and episodes of shortness of breath at rest and with physical exertion. It was noted that the onset was between 2003 and 2004. The examiner acknowledged that the Veteran has a pulmonary condition, but no specific pulmonary condition was identified. The examiner opined that it is less likely than not that the Veteran's fatigue and shortness of breath is related to military service because there was no established respiratory condition or diagnosis at the time of the examination. However, this is inconsistent with the examiner's finding within the examination report that the Veteran has a pulmonary condition. Additionally, for the same reasons discussed above, the examiner did not consider all of the Veteran's TERA. Furthermore, the issue of whether the Veteran's maxillary sinus fracture in service and the continued symptoms of fatigue and shortness of breath since service were not addressed. Therefore, the Board must find the April 2024 VA opinion to be inadequate. See Nieves-Rodriguez.

The Board further notes, for Persian Gulf War Veterans, service connection for chronic undiagnosed illnesses or a medically unexplained chronic multi-symptom illness arising from service in Southwest Asia during the Persian Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The April 2024 examiner did not consider whether the Veteran's fatigue or shortness of breath may be a chronic undiagnosed illnesses or a medically unexplained chronic multi-symptom illness arising from service in Southwest Asia during the Persian Gulf War. As such, this issue must be considered upon remand.

Based on the foregoing, remand is warranted for further development.

The matters are REMANDED for the following action:

The AOJ must complete a new TERA memorandum that specifically indicates the TERA the Veteran had due to his military occupational specialty of an aviation boatswain's mate.

Obtain addendum opinions from an appropriate examiner or examiners, not previously associated with the claim, for the issuance of medical opinions as to the nature and etiology of the Veteran's bilateral metatarsalgia, left ankle disability, sleep apnea, and fatigue and shortness of breath. The examiner(s) must thoroughly review the Veteran's entire claims file, including a copy of this Remand.

If the examiner(s) determines that a new examination is necessary to provide the requested opinions, a new examination must be scheduled.

The examiner(s) is/are asked to provide the following:

a.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's bilateral metatarsalgia and left ankle disability were caused or aggravated by his PTSD and traumatic brain injury, specifically his poor judgment due to PTSD and traumatic brain injury that caused him to jump from a roof onto concrete in 2019.

b.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's sleep apnea is related to his military service, specifically the maxillary sinus fracture he sustained during military service, and TERA.

In providing an opinion, the examiner must address the Veteran's reports that he has had sleep apnea symptoms since military service.

c.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's sleep apnea was caused or aggravated by his PTSD, to include medication and being overweight, or TERA.

The examiner must consider any and all toxic exposures during the Veteran's military service. The examiner is asked to consider total potential exposure and the synergistic combined effect of all TERA of the Veteran.

Obesity

i. Opine whether the Veteran's service-connected PTSD, to include medications, caused him to become overweight.

ii. Opine whether service connected PTSD, to include medications, aggravated the Veteran's weight.

iii. If service connected PTSD, to include medication for the disability, caused the Veteran to become overweight or aggravated his weight, opine whether the Veteran's weight was a substantial factor in causing his sleep apnea.

iv. Opine whether the Veteran's sleep apnea would not have occurred but for the weight caused or aggravated by his service-connected PTSD,
exposures during the Veteran's military service. The examiner is asked to consider total potential exposure and the synergistic combined effect of all TERA of the Veteran.

Obesity

i. Opine whether the Veteran's service-connected PTSD, to include medications, caused him to become overweight.

ii. Opine whether service connected PTSD, to include medications, aggravated the Veteran's weight.

iv. Opine whether the Veteran's sleep apnea would not have occurred but for the weight caused or aggravated by his service-connected PTSD, to include medications.

d.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's fatigue and shortness of breath is related to his military service, specifically the maxillary sinus fracture he sustained during military service and TERA.

e.) Provide an opinion as to whether the Veteran's fatigue and shortness of breath are not attributable to a known clinical diagnosis. If so, the examiner must then provide an opinion as to whether it is at least as likely as not that the symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness due to service in Southwest Asia during the Gulf War.

The examiner(s) is/are advised that proximate cause is not required for service connection on a secondary or aggravation basis. Rather, the question is whether a service-connected disability is a "but for" cause of the claimed condition, or the claimed condition would have been less severe but for his service-connected disability, to include use of medication for treatment.

The examiner(s) is/are reminded that a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service.

The examiner(s) is/are advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinion.

The examiner(s) must provide a complete rationale for any opinion expressed. If the examiner is unable to opine without resorting to speculation, a basis for reaching this conclusion must be provided.

Neely M. Peden

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Temple, 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.

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