Case A26030162

JONATHAN HAGER · 2026 · Case ID: A26030162

MIXED

Summary

The Veteran served on active duty from June 2015 to April 2018. The Veteran appeals decisions regarding an increased rating for PTSD, service connection for sleep apnea, a 10 percent rating for hemorrhoids, and service connection for tinnitus. The Veteran also appeals remanded issues of service connection for HIV, a right foot disability, and a compensable rating for acne vulgaris. The Veteran withdrew the appeals for PTSD and sleep apnea, leading to their dismissal. Service connection for tinnitus was granted, with the Board resolving reasonable doubt in the Veteran's favor due to evenly balanced evidence regarding its relation to in-service acoustic trauma. A 10 percent rating for hemorrhoids was granted, also with reasonable doubt resolved in the Veteran's favor, as the evidence was evenly balanced regarding the severity and frequency of symptoms without medication. The claims for HIV, right foot disability, and acne vulgaris were remanded for additional VA examinations to determine etiology and severity, as the prior examinations were deemed inadequate or a pre-decisional duty to assist error occurred. The Board found the evidence for hemorrhoids and tinnitus supported a grant of benefits.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210526-162509

Full Decision Text

Citation Nr: A26030162
Decision Date: 04/02/26 Archive Date: 04/02/26

DOCKET NO. 210526-162509
DATE: April 2, 2026

ORDER

The appeal concerning the issue of entitlement to an initial rating higher than 70 percent for PTSD is dismissed as withdrawn.

The appeal concerning the issue of entitlement to service connection for sleep apnea is dismissed as withdrawn.

Entitlement to a 10 percent rating, but no higher, for hemorrhoids is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for human immunodeficiency virus (HIV) is remanded.

Entitlement to service connection for a right foot disability is remanded.

Entitlement to a compensable rating for acne vulgaris is remanded.

FINDINGS OF FACT

1. In January 2025, prior to the promulgation of a decision in the appeal, the Veteran, through his authorized representative, expressed his desire to withdraw the appeal seeking an increased rating for PTSD.

2. In January 2025, prior to the promulgation of a decision in the appeal, the Veteran, through his authorized representative, expressed his desire to withdraw the appeal seeking entitlement to service connection for sleep apnea.

3. The evidence is approximately evenly balanced as to whether the Veteran's hemorrhoids more nearly approximated irreducible large or thrombotic hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences; symptoms did not more nearly approximate persistent bleeding with anemia or fissures, or continuously prolapsed internal hemorrhoids with at least three episodes per year of thrombosis.

4. The evidence is approximately evenly balanced as to whether the Veteran's tinnitus is related to in-service acoustic trauma.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal seeking an increased rating for PTSD as withdrawn have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for dismissal of the appeal seeking entitlement to service connection for sleep apnea as withdrawn have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205).

3. With reasonable doubt resolved in favor of the Veteran, the criteria for a 10 percent rating, but no higher, for hemorrhoids are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7336 (in effect prior to and since May 19, 2024).

4. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2015 to April 2018.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. In January 2025, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the February 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his attorney within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim
receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

However, because the Board is remanding the claims of service connection for HIV and right foot disability, and the claim for an increased rating for acne vulgaris, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Withdrawal - PTSD and sleep apnea

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by a Veteran or a Veteran's authorized representative. Id.

In January 2025, the Veteran's representative submitted a statement that the Veteran wishes to withdraw the issues pertaining to sleep apnea and PTSD. The written statement constitutes a valid withdrawal of the appeal as it complied with the requirements of 38 C.F.R. § 20.205(b)(1) and (2) by including the name of the Veteran, the applicable VA file number, and the statement reflecting a desire to withdraw the appeal of the PTSD and sleep apnea issues. Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020) (written withdrawals need only comply with 38 C.F.R. § 20.204(b), renumbered as 38 C.F.R. § 20.205).

As the Veteran has withdrawn the appeal seeking a higher rating for PTSD and entitlement to service connection for sleep apnea, there remains no specific determination with which the claimant disagrees. Thus, pursuant to the applicable statute, the Board will dismiss the appeal of those issues. 38 U.S.C. § 7105(d).

Increased rating for hemorrhoids

Disability ratings are determined by the application of the VA's Schedule for

Rating Disabilities. Separate diagnostic codes identify the various disabilities,

which are based, as far as practically can be determined, on average impairment in

earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-

connected disability, the entire history must be borne in mind. Schafrath v.

Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to

staged ratings to compensate for times since filing the claim when the disability

may have been more severe than at other times during the course of the claim on

appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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.

Under docket number 200401-79191, the Board also addressed the issue of entitlement to an increased rating for hemorrhoids. In the modernized review system under the Appeals Modernization Act, the Board must sometimes address the same issue in different appeal streams. Cf. Phillips v. McDonough, 37 Vet. App. 394, 401 (2024) ("because TDIU can come up basically any time VA is rating a disability, VA may need to address it as part of separate claim streams when it is rating different disabilities").

The Veteran has a noncompensable initial rating for hemorrhoids under DC 7336. 38 C.F.R. § 4.114, DC 7336. During the pendency of the appeal, VA published amendments to 38 C.F.R. § 4.114, the Schedule of Ratings for the Digestive System, effective May 19, 2024.

Prior to May 19, 2024, under the applicable criteria, large or thrombotic, irreducible hemorrhoids, with
, 401 (2024) ("because TDIU can come up basically any time VA is rating a disability, VA may need to address it as part of separate claim streams when it is rating different disabilities").

Prior to May 19, 2024, under the applicable criteria, large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences, warrant a 10 percent rating. With persistent bleeding and with secondary anemia, or with fissures, a 20 percent rating is warranted. Id.

The terms "moderate" and "severe" are not defined in the Rating Schedule.

According to Meriam Webster's Dictionary (11th Ed. 2007), "moderate" means

limited in scope or effect. "Severe" means very painful or harmful or of a great

degree.

From May 19, 2024, under the applicable criteria, prolapsed internal hemorrhoids with two or less episodes per year of thrombosis; or external hemorrhoids with three or more episodes per year of thrombosis, warrant a 10 percent rating. With internal or external hemorrhoids with persistent bleeding and anemia; or continuously prolapsed internal hemorrhoids with three or more episodes per year of thrombosis, a 20 percent rating is warranted.

Turning to the evidence, during a January 2020 VA examination, the Veteran reported that he continues to have itching, pain and bleeding with bowel movements (blood on toilet paper), but no spontaneous rectal bleeding. The examiner noted that the Veteran had mild to moderate hemorrhoids that caused itching, pain, and bleeding with bowel movements with no impact on the Veteran's ability to work and no use of medication. The hemorrhoids were not shown or reported to be large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. There was also no showing of persistent bleeding and/or secondary anemia, or fissures.

A May 2020 VA treatment record shows that the Veteran was treated for an external infected thrombosed hemorrhoid and he was concerned for any abscess spreading. The treating clinician noted that the Veteran had "about 2 cm external thrombosed hemorrhoid" that was tender and appeared to have a punctate opening with purulent drainage; no surrounding redness at this time but lesion is tender and tense.

During an October 2020 VA rectum and anus examination, the Veteran reported that his current symptoms are itching and occasional bleeding. His treatment plan included continuous medication in the form of Preparation H. Upon physical examination, the examiner found that the Veteran had small moderate external hemorrhoids. Pruritus ani (anal itching) was noted. The examiner determined that hemorrhoids impacts his ability to work as they interfere with sleep, activities of daily living, sitting and driving for prolonged of time.

An August 2021 VA treatment record documents that the Veteran reported that he had a hemorrhoidectomy in the past "that did not help it just made it worse."

The above evidence reflects that during the period on appeal the Veteran experienced some bleeding and pain associated with his hemorrhoids, and that at least once, examination revealed a small protruding hemorrhoid which was thrombosed. Although this is contemplated by only a noncompensable rating under the old version of DC 7336, the Veteran used Preparation H medication to treat his symptoms. The criteria for rating hemorrhoids do not contemplate medication. Thus, the Board's analysis in this case discounts the beneficial effects of the Veteran's medications in assessing the severity of his hemorrhoids and contemplates the nature, severity, and frequency of his hemorrhoid symptoms without medications. See Ingram v. Collins, 38 Vet. App. 130, 131 (2025) (the Board is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use").

The evidence shows that the Veteran had, at times, thrombotic hemorrhoids, and that medication ameliorated the effects of his hemorrhoids. In light of the reported and observed symptoms, and discounting the beneficial effects of the Veteran's medications, the Board finds that the evidence is approximately evenly balanced as to whether his hemorrhoids would have been irreducible and large, with excessive redundant tissue, evidencing frequent recurrences throughout the entire period on appeal without the medications. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, a higher 10 percent rating for hemorrhoids is warranted under the
Board is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use").

The evidence shows that the Veteran had, at times, thrombotic hemorrhoids, and that medication ameliorated the effects of his hemorrhoids. In light of the reported and observed symptoms, and discounting the beneficial effects of the Veteran's medications, the Board finds that the evidence is approximately evenly balanced as to whether his hemorrhoids would have been irreducible and large, with excessive redundant tissue, evidencing frequent recurrences throughout the entire period on appeal without the medications. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, a higher 10 percent rating for hemorrhoids is warranted under the old version of DC 7336. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

A rating higher than 10 percent is not warranted at any time during the period on appeal under either the old or the revised version of DC 7336. In this regard, the Veteran has not described symptoms such as persistent bleeding with anemia or fissures, continuously prolapsed internal hemorrhoids, or three or more episodes of thrombosis of his hemorrhoids. Additionally, the Veteran's treatment records and the January 2020 and October 2020 VA examination reports do not describe any such symptomatology. This includes discounting the beneficial effects of the Veteran's medications, which were not indicated to be so significant that in their absence he would have experienced such symptomatology. Therefore, higher 10 percent rating, but no higher, for hemorrhoids is warranted. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.114, DC 7336 (in effect prior to and since May 19, 2024).

Service connection for tinnitus

In his April 2020 VA 21-526EZ claim form, the Veteran stated that is tinnitus is caused by his shooting machine guns, and throwing grenades with earplugs that "barely stayed in my ear when firing." He has indicated throughout the appeal period that he experienced tinnitus symptoms both in and since separation from service as a result of acoustic trauma that he endured.

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (including tinnitus within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a)).

Service treatment records show that tinnitus was noted on the Veteran's separation audiogram dated September 2017. Additionally, he reported that he currently experiences ringing in his ears. Therefore, the Veteran meets the current disability and in-service injury requirements for the claim. This would be sufficient to establish service connection for tinnitus under 38 C.F.R. § 3.303(b). Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008) (medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and that he still has the same chronic disease).

In any event, continuity of symptomatology has been shown. Tinnitus is capable of lay observation and the Veteran reported that he experienced tinnitus symptoms both in and since his separation from active duty service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Board finds these reports credible and therefore competent as they have been consistent throughout the appeal period.

Based on the Veteran's documented in-service diagnosis of tinnitus, and his competent
veteran had a chronic disease in service and that he still has the same chronic disease).

Based on the Veteran's documented in-service diagnosis of tinnitus, and his competent and credible lay statements regarding the continuous symptoms of tinnitus that onset in service and persisted thereafter, the evidence is at least evenly balanced as to whether the Veteran's tinnitus had its onset in service, whether under the 38 C.F.R. § 3.303(b) presumption of service connection for chronic disease or based on continuity of symptomatology. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

HIV

The February 2021 rating decision favorably found that the Veteran had a current diagnosis of HIV as noted in his VA treatment records. Specifically, a May 2020 HIV test result was positive. Therefore, the current disability requirement is met.

STRs note and the Veteran reported to multiple medical providers that he was sexually assaulted during active duty service. The Veteran, through his attorney, contends that he contracted HIV due to that assault. Therefore, the in-service injury or disease requirement is met.

The remaining question is whether the Veteran's current HIV is related to the in-service injury or disease.

The Veteran has not been afforded a VA examination for his claim of service connection for HIV. VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a current disability, the record indicates that the disability or persistent or recurrent symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. However, the duty to provide an examination is not limitless. VA must provide an examination when there is (A) competent evidence of a current disability (or persistent or recurrent symptoms thereof) that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C. § 5103A(d). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be competent evidence of a current disability, competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all claimants. Waters, 601 F.3d at 1278-1279.

As the Veteran has not been afforded a VA examination for his HIV and given that there is evidence that it may be associated with service, a remand is warranted for a VA examination to determine the etiology of this disability and to correct this pre-decision duty to assist error. 38 U.S.C. § 5103A(d), (f)(2)(A); 20.802(a); McLendon, 20 Vet. App. at 79.

Right foot disability

In his April
as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all claimants. Waters, 601 F.3d at 1278-1279.

Right foot disability

In his April 2020 VA 21-526EZ, the Veteran stated that his boots caused his feet to become "crusted and dry" and they hurt when his skin gets dry. Additionally, as noted in the March 2025 attorney statement, the Veteran reported that "he has been treating his foot pain with over the counter medication as well as modifying his activities and trying to stay off of his foot where he can."

Service treatment records show that in February 2016, the Veteran was treated for right big toe numbness and paresthesia of the skin. In addition, his December 2017 separation examination was positive for foot trouble.

However, the Veteran has not been afforded a VA examination to determine the nature of his claimed right foot disability and whether any right foot disability is related to service. As this was a pre-decisional duty to assist error, a remand is necessary to afford the Veteran appropriate examinations and to obtain appropriate medical opinion. See 38 U.S.C. §§ 1168, 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 20.802 (a).

Entitlement to a compensable rating for acne vulgaris

The Veteran asserts the severity of his symptomatology associated with his service-connected acne warrants a compensable rating. Specifically, as noted in the March 2025 attorney's statement, he contends that he has scars on his shoulders and upper back due to the acne, and the acne causes disfigurement of his head, face, or neck.

The Veteran was afforded a VA skin examination in June 2022; however, it is unclear whether the examiner physically examined the Veteran's entire body, including his back and shoulders or just his head as the examination appears to focus on the Veteran's face and neck. Additionally, it is unclear whether the Veteran has scarring due to his acne.

Accordingly, the Board finds the June 2022 VA examination inadequate for review and a pre-decisional duty to assist error has occurred. Based on the foregoing, a remand is required to correct such pre-decisional duty to assist errors. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology of his HIV. The clinician must opine whether it is at least as likely as not that his HIV (1) began during active service; or (2) is related to an in-service injury or disease, to include the in -service assault reported by the Veteran.

The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology of his claimed right foot disability. The clinician must opine whether it is at least as likely as not that any foot disability experienced by the Veteran (1) began during service; or (2) is related to an in-service injury or disease, including the in-service treatment of right big toe numbness and paresthesia of the skin in February 2016.

The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion.

3. Schedule the Veteran for an examination to assess the severity of his acne. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's skin disability to include describing the symptoms from approximately November 2019 when the claim was filed based on the medical evidence and the Veteran's statements.

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Hemphill, 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

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