HEARING LOSS

JONATHAN HAGER · 2026 · Case ID: A26032105

MIXED

Summary

The veteran, who served from September 1990 to December 1994 and December 2002 to October 2003, appeals the denial of service connection for bilateral hearing loss and deviated septum, and seeks an earlier effective date for PTSD and eczema. The Board denied service connection for bilateral hearing loss, finding the veteran did not meet the VA criteria for hearing loss based on two VA audiological examinations. For deviated septum, the Board denied service connection, noting the absence of in-service trauma and that the veteran's current condition was diagnosed post-service as non-traumatic. The Board also found that rating a non-traumatic deviated septum would constitute impermissible pyramiding given the existing service-connected chronic sinusitis and allergic rhinitis. Service connection for hypothyroidism was granted due to equipoise in the evidence, with the Board resolving doubt in the veteran's favor after conflicting opinions from VA examiners and a private physician. Service connection for obstructive sleep apnea was also granted due to equipoise, with the Board relying on the veteran's lay testimony of symptoms during service and the lack of a definitive unfavorable opinion from the VA examiner. The Board denied earlier effective dates for PTSD and eczema, finding no evidence of claims filed prior to February 13, 2023. The Board granted an earlier effective date for back disability, finding the veteran continuously pursued the claim, establishing an effective date of February 13, 2023. The Board granted a 50 percent rating for chronic sinusitis from August 5, 2021, to December 14, 2023, finding the evidence supported near-constant symptoms and discounting medication effects. The Board granted a 10 percent rating for allergic rhinitis from August 5, 2021, to December 14, 2023, resolving doubt in favor of the veteran for symptoms that more nearly approximated the criteria for a 10 percent rating. The Board granted a 20 percent rating for degenerative arthritis of the lumbar spine, finding the evidence supported additional range of motion loss during flare-ups. The Board granted a 70 percent rating for PTSD, finding the veteran exhibited suicidal ideation and irritable behavior, which more nearly approximated deficiencies in most areas.

Rationale

No current bilateral hearing loss for VA purposes based on audiological exams.; Failed to meet specific criteria in 38 C.F.R. § 3.385.; Evidence persuasively weighs against service connection.

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

250514-544422

Full Decision Text

Citation Nr: A26032105
Decision Date: 04/08/26 Archive Date: 04/08/26

DOCKET NO. 250514-544422
DATE: April 8, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for deviated septum is denied.

Entitlement to service connection for hypothyroidism is granted.

Entitlement to service connection for obstructive sleep apnea is granted.

Entitlement to an earlier effective date earlier February 13, 2023 for the award of service connection for posttraumatic stress syndrome (PTSD) is denied.

Entitlement to an earlier effective date earlier February 13, 2023 for the award of service connection for eczema is denied.

Entitlement to an earlier effective of February 13, 2023 for the grant of service connection for degenerative arthritis of the lumbar spine is granted, subject to controlling regulations governing the payment of monetary benefits.

From August 5, 2021 to December 14, 2023, entitlement to an initial 50 percent rating for chronic sinusitis is granted, subject to controlling regulations governing the payment of monetary benefits.

From August 5, 2021 to December 14, 2023, entitlement to an initial 10 percent rating for allergic rhinitis is granted, subject to controlling regulations governing the payment of monetary benefits.

Entitlement to an initial 20 percent rating, but no higher, for degenerative arthritis of the lumbar spine is granted, subject to controlling regulations governing the payment of monetary benefits.

Entitlement an initial compensable rating for eczema is denied.

Entitlement to an initial rating of 70 percent, but no higher, for PTSD is granted, subject to controlling regulations governing the payment of monetary benefits.

REMANDED

Entitlement to service connection for liver disability is remanded.

Entitlement an initial compensable rating for eczema on an extraschedular basis is remanded.

FINDINGS OF FACT

1. Hearing loss disability for VA purposes has not been present during the period of the claim or approximate thereto.

2. The Veteran's deviated septum is not the result of trauma, in-service or otherwise.

3. The Veteran's hypothyroidism had its onset in service.

4. The evidence is at least evenly balanced as to whether the Veteran's obstructive sleep apnea is related to service.

5. On February 13, 2023, RO received an Intent to File a Claim for Compensation, and on March 6, 2023, the RO received a claim identifying PTSD as one of the disabilities for which he was claiming compensation. There is no evidence that, prior to February 13, 2023, he filed a claim on the appropriate form or an Intent to File a claim for service connection for PTSD prior to February 13, 2023.

6. On February 13, 2023, RO received an Intent to File a Claim for Compensation, and on March 6, 2023, the RO received a claim identifying eczema as one of the disabilities for which he was claiming compensation. There is no evidence that, prior to February 13, 2023, he filed a claim on the appropriate form or an Intent to File a claim for service connection for eczema prior to February 13, 2023.

7. The Veteran submitted an Intent to File a Claim for Compensation in February 13, 2023, then submitted a claim for compensation for back disability on March 6, 2023, and was diagnosed with this disability prior to that date.

8. From August 5, 2021 to December 14, 2023, the Veteran's chronic sinusitis, have more nearly approximated near constant sinusitis, characterized by headaches, pain and tenderness of the sinuses, and purulent discharge, after repeated surgeries.

9. From August 5, 2021 to December 14, 2023, the Veteran's allergic rhinitis, have more nearly approximated greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side when discounting the effects of medication; but no polyps.

10. The Veteran's lumbar spine symptoms have more nearly approximated forward flexion to 60 degrees; but have not more nearly approximated forward flexion to 30 degrees or less or ankylosis.

11. The Veteran's eczema does not demonstrate at least five percent but less than entire body or exposed areas affected; or require intermittent systemic therapy of less than six weeks over the past 12-month period.

12. The Veteran's service-connected PTSD symptoms and overall impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment.

CON
imated greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side when discounting the effects of medication; but no polyps.

10. The Veteran's lumbar spine symptoms have more nearly approximated forward flexion to 60 degrees; but have not more nearly approximated forward flexion to 30 degrees or less or ankylosis.

12. The Veteran's service-connected PTSD symptoms and overall impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385.

2. The criteria for service connection for deviated septum have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.97, Diagnostic Code 6502.

3. The criteria for service connection for hypothyroidism have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for an effective date earlier than February 13, 2023 for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

6. The criteria for an effective date earlier than February 13, 2023 for the award of service connection for eczema have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

7. The criteria for an effective date of February 13, 2023 for the award of service connection for degenerative arthritis, lumbar spine have been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

8. From August 5, 2021 to December 14, 2023, the criteria for an initial 50 percent rating for chronic sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6513.

9. From August 5, 2021 to December 14, 2023, the criteria for an initial 10 percent rating, but no higher, for allergic rhinitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6522.

10. The criteria for a 20 percent, but no higher, for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

11. The criteria for an initial compensable rating for eczema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806.

12. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1990 to December 1994, and from December 2002 to October 2003.

not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806.

12. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1990 to December 1994, and from December 2002 to October 2003.

These matters come to the Board of Veterans' Appeals (Board) on appeal from November 2024 and February 2025 higher-level-review decisions, following January 2024 and February 2024 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2024 and February 2024 agency of original jurisdiction (AOJ) decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

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

However, because the Board is remanding the claims of service connection for liver disability and for a compensable rating for eczema on an extraschedular basis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Veteran's representative asserted that earlier effective dates for the assignment of a 50 percent rating for chronic sinusitis and a 30 percent rating for allergic rhinitis were warranted. The Veteran's initial disagreement which resulted in an appeal to the Board stemmed from the initial ratings assigned for his service-connected chronic sinusitis and allergic rhinitis. The RO subsequently granted increased ratings, which resulted in staged ratings. The Veteran continuously pursued his challenge to the initial ratings assigned by timely filing in succession the available review options as specified in paragraph 38 C.F.R. § 3.2500(c). See 38 C.F.R. § 3.2500(h)(1) ("Except as otherwise provided by other provisions of this part, including § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in paragraph (c) of this section within one year of the issuance of the decision"). Therefore, the Board has recharacterized the issues on the title page, as the Veteran's claims for earlier effective dates for the maximum assigned ratings of 50 percent for chronic sinusitis and 30 percent for allergic rhinitis are more properly characterized as claims for higher initial ratings for the earlier portion of the rating period on appeal.

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

1. Bilateral Hearing Loss

38 C.F.R. § 3.385 provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.

For the following reasons, the Board finds that service connection for bilateral hearing loss is not warranted.

In June 2023 the Veteran underwent a VA audiological examination. The evaluation showed pure tone thresholds, in decibels, as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 25 20 15 20

LEFT 10 20 10 20 25

Speech discrimination testing using the Maryland CNC word list was 96 percent in right ear and 100 percent in left ear. The examiner's findings indicate the Veteran does not have hearing loss for VA purposes.

In December 2024 the Veteran underwent a VA audiological examination. The evaluation showed pure tone thresholds, in decibels, as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 35 15 15 25

LEFT 10 25 10 20 30

Speech discrimination testing using the Maryland CNC word list was 94 percent in right ear and 96 percent in left ear. The examiner's findings indicate the Veteran does not have hearing loss for VA purposes.

The Veteran has therefore not met his burden of showing that he has a current bilateral hearing loss disability for VA purposes. The current disability element of a service connection claim may be defined broadly, Saunders, 886 F.3d at 1364-65 (a diagnosis is not required to meet the current disability requirement where pain causes functional impairment) and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, none of the medical or lay evidence demonstrates that the Veteran has a disability related to bilateral hearing loss at any time during the course of the appeal or approximate thereto. Moreover, the requirements for establishing a hearing loss disability are specifically delineated in 38 C.F.R. § 3.385 and thus hearing loss is not a disability that may be established by showing symptoms causing impairment in earning capacity and have not been met in this case. He has thus failed to establish an essential element of the service connection claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim).

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for bilateral hearing loss is warranted. Rather, the evidence persuasively weighs against service connection
holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim).

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for bilateral hearing loss is warranted. Rather, the evidence persuasively weighs against service connection for bilateral hearing loss. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

2. Deviated Septum

Only traumatic deviated nasal septum conditions can qualify as disabilities for VA purposes. See 38 C.F.R. § 4.97, Diagnostic Code 6502 (requiring deviation of the nasal septum must be "traumatic only"). Cf. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020), aff'd sub nom. Martinez-Bodon v. McDonough, 28 F. 4th 1241, 1247 (Fed. Cir. 2022) (using the language of 38 C.F.R. § 4.130 in the Rating Schedule to determine the criteria for service connection for a disability.

The Veteran's service treatment records (STRs) are negative of complaints, treatment, or diagnosis of deviate septum or nose condition. At his September 1994 separation examination, his nase evaluated as normal. On the accompanying report of medical history, the Veteran reported he was in good health and taking no medication. Ne denied ear, nose or throat trouble.

Post-service private treatment records show the Veteran underwent a septoplasty in May 2017 and a diagnosis of deviated nasal septum was noted.

In August 2023, the Veteran underwent a VA examination. He reported the onset of symptoms in 2003 and history of snoring that was discovered with testing for sleep apnea. He further reported history of nasal surgery to open passages. The examiner determined a diagnosis of deviated septum non-traumatic s/p septoplasty. The examiner opined that the claimed deviated septum was less likely than not caused by the indicated toxic exposure activity(ies), after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. The examiner explained that a deviated septum is when the nasal cartilage is not centered. The causes include trauma, accidents, fights, and as the nose grows the septum can lean towards one side. Deviated septum is not the result of toxic exposure.

The VA examiner explained the reasons for her conclusions based on an accurate characterization of the evidence; her opinion is entitled to substantial probative weight. Thus, the opinion is probative on the question of whether the Veteran's deviated septum is related to service, to include the synergistic, combined effect of all of his toxic exposure risk activities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, there is no contrary medical opinion in the evidence of record.

The Veteran does not contend he sustained nasal trauma in service causing the deviated nasal septum with continuous symptoms since service, and the record does not otherwise suggest that this is the case. As noted, compensation is only warranted for traumatic deviated nasal septum. See 38 C.F.R. § 4.97, Diagnostic Code 6502. Moreover, the Veteran is not competent to opine on the complex medical question of whether his deviated septum is related to service, as absent observation of continuous deviated septum symptoms, this is an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of
.97, Diagnostic Code 6502. Moreover, the Veteran is not competent to opine on the complex medical question of whether his deviated septum is related to service, as absent observation of continuous deviated septum symptoms, this is an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").

Additionally, the Board has considered whether service connection is warranted for a non-traumatic deviated septum disability pursuant to a rating code other than Diagnostic Code 6502. However, while it is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. In this regard, to assign separate ratings for a non-traumatic deviated septum on the basis of nasal obstruction or difficulty breathing constitutes impermissible pyramiding, as the Veteran is already in receipt of service connected for allergic rhinitis and chronic sinusitis. See 38 C.F.R. § 4.14; cf. 38 C.F.R. § 4.96 (noting that multiple evaluations are prohibited for certain overlapping respiratory diagnostic codes).

Because the Veteran has not raised a claim for, and the evidence does not suggest, service connection for a deviated septum due to traumatic injury and his nasal and respiratory symptoms are already contemplated as part of his service-connected allergic rhinitis and chronic sinusitis, service connection for a deviated septum is not warranted.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for deviated septum is warranted. Rather, the evidence persuasively weighs against service connection for deviated septum. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 24 F.4th at 781-82.

3. Hypothyroidism

In this case, the evidence of record indicates a current disability. Specifically, a March 2015 private treatment record shows a diagnosis of hypothyroidism. Thus, the first element of service connection has been met.

The Veteran's STRs are negative of complaints, treatment or diagnosis of hypothyroidism during active duty service. Post-service private treatment records dated in August 2016 show that the Veteran was diagnosed with hypothyroidism in 2003 and has been treated for condition and remained stable since 2003.

In November 2021, the Veteran underwent a VA examination. The examiner opined that it is less likely than not that the Veteran's hypothyroidism was incurred in or caused by active duty service. The examiner explained that the Veteran served in military for 31 years and was only on active duty for brief periods of time, and the remainder of his time was in the Naval Reserves. The examiner further explained that while there are ample reserves records noting a diagnosis of hypothyroidism, unable to locate any active duty records (1990-1994 and 2002-2003) showing a diagnosis of hypothyroidism. The examiner noted that there were several objective records after active duty reporting a diagnosis of hypothyroidism was made in 2003, however, all of these reports were made on subjective report and no additional information to support this was provided. The examiner concluded that it is less likely than not that the Veteran's hypothyroidism developed as a result of any exposures on active duty deployments.

In April 2022, a private physician opined that it is more likely than not that the Veteran's current condition of hypothyroidism was incurred in and caused by active duty military service. The private physician explained that abnormal thyroid function detected in association with an environmental exposure is usually thought to be a direct effect of the agent. The Veteran has multiple Gulf War deployments and was exposed to exhaust, fuel, chemicals, smoke, sand, and dust. Overall poor air quality is widely conceded. Dr. M.S. further explained that chronic exposure to potential environmental toxicants such as smoke, chemicals, and fuel may have significant effects on the immune system. Significant changes in immune function, even if short-lived, may have serious consequences for the exposed host that may impinge affect susceptibility to infectious agents. Major alterations in immune function that are long lasting may result in an increased likelihood of development and/or progression of cancer, as well as autoimmune diseases. Currently, studies have shown that genetic predisposition accounts for approximately thirty percent of all autoimmune diseases. The rest, 70 percent, are due to environmental factors, including toxic chemicals, dietary components, gut dysbiosis, and infections.

The private physician noted that STRs s show the Veteran's thyroid symptoms first presented around 1992 after his first deployment. Labs indicated a potential issue, but no follow up treatment was recommended. Symptomatology continued and worsened and is noted throughout the records and post-deployment assessments. I find it medically feasible that the hazardous exposures, including industrial pollution this Veteran was exposed to on active duty, affected and weakened his immune system. The private physician further noted that the hazardous materials he was exposed to are known potential triggers of autoimmunity. The Persian Gulf exposure is associated with immune adjuvant effects and the development of autoimmune diseases, which likely led to his thyroid diagnosis. The thyroid condition, which is now chronic, first manifested during a period of active service and is well documented throughout the records.

In a March 2023 VA examination report, the examiner opined that the claimed hypothyroidism was less likely than not caused by the indicated toxic exposure activity(ies), after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. The examiner explained that the caused of hypothyroidism include pituitary disorder, not enough iodine. The most common cause of thyroiditis or "attacker," is autoimmune disease, which is the result of your immune system accidentally attacking your body instead of protecting it. Hypothyroidism or thyroiditis are not presumptive conditions of TERA; thus, a nexus has not been established.

The above evidence of record includes conflicting opinions as to the etiology of the Veteran's hypothyroidism. The VA examiners and private physician provided a thorough rationale for the basis of their medical opinions. Thus, there is no basis on which to assign greater probative weight to any of the medical opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

For the reasons above, the evidence is at least evenly balanced as to whether the Veteran's hypothyroidism had its onset in active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection for hypothyroidism is warranted. 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102.

4. Obstructive Sleep Apnea

In this case, the evidence of record, specifically an August 2023 VA examination report shows a diagnosis of obstructive sleep apnea. Thus, a current disability has been demonstrated.

With respect to the in-service disease requirement, a September 2023 post-deployment health assessment shows the Veteran reported still feeling tired after sleeping during deployment. An August 2023 VA examination report shows the Veteran reported the onset during service in 2003 with a history of snoring. The Veteran reported the symptoms have worsened since the onset in service. Here, the lay statements from the Veteran have indicated that he had symptoms during service and these statements in this regard are competent and credible. The lay statements are therefore sufficient to establish the second element of his service connection claim.

In an August 2023 VA examination report, the examiner opined that obstructive sleep apnea was less likely than not caused by the indicated toxic exposure activity(ies), after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. The examiner explained that there is lack of medical evidence to prove that sleep apnea is
2003 with a history of snoring. The Veteran reported the symptoms have worsened since the onset in service. Here, the lay statements from the Veteran have indicated that he had symptoms during service and these statements in this regard are competent and credible. The lay statements are therefore sufficient to establish the second element of his service connection claim.

In an August 2023 VA examination report, the examiner opined that obstructive sleep apnea was less likely than not caused by the indicated toxic exposure activity(ies), after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. The examiner explained that there is lack of medical evidence to prove that sleep apnea is the result of toxic exposures while in service. According to the VA website Sleep Apnea is not a presumptive condition related to Gulf War. The examiner did not provide an opinion with rationale as to whether the Veteran's sleep apnea was otherwise related to or had its onset in service.

While the Board could remand the claim for an opinion on this latter question, such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim").

Here, the Veteran's lay testimony indicating symptoms in and since service, combined with the diagnosis of obstructive sleep apnea, is sufficient to establish that the Veteran's obstructive sleep apnea had its onset in service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"); Maples v. Wilkie, No. 18-2016, 2019 U.S. App. Vet. Claims LEXIS 199 (Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran's obstructive sleep apnea had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection is warranted for obstructive sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Earlier Effective Date

Effective March 24, 2015, in order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by VA must be filed. 38 C.F.R. § 3.151(a). A claimant may indicate a desire to file a claim by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file, VA will furnish the claimant with the appropriate form. Id. If VA receives a complete application form within a year, it will consider the complete claim filed as of the date of the intent to file. Id.

Generally, the effective date of an award based on an initial claim or a supplemental claim for compensation shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a). The statutory provision is implemented by regulation which provides that the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. As noted, under 38 C.F.R. § 3.2500(h)(1), the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified
date of receipt of the application therefor. 38 U.S.C. § 5110 (a). The statutory provision is implemented by regulation which provides that the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. As noted, under 38 C.F.R. § 3.2500(h)(1), the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in 38 C.F.R. § 3.2500(c).

5. PTSD and Eczema

The Veteran contends that he is entitled to an effective date prior to February 13, 2023 for the grant of service connection for PTSD and eczema. For the following reasons, the assignment of an earlier effective date for service connection for PTSD and eczema is not warranted.

On February 13, 2023, the Veteran submitted an Intent to File a Claim for Compensation. On March 6, 2023, the Veteran submitted VA Form 21-526EZ, Fully Developed Claim (Compensation), identifying PTSD and skin condition as disabilities for which he was claiming compensation. In September 2023, the RO granted service connection for PTSD rated at 50 percent, and eczema rated at noncompensable, effective February 13, 2023, the date of submitting the Intent to File. The evidence of record does not show, and the Veteran did not assert, that he filed a claim or an Intent to File a Claim for service connection for PTSD and eczema prior to February 13, 2023.

The Board acknowledges that the Veteran may have been experiencing symptoms prior to February 13, 2023. However, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability. Rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999).

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to an effective date earlier than February 13, 2023, for the grant of service connection for PTSD and eczema is warranted. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application to this claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

6. Back

The Veteran contends that he is entitled to an effective date prior to July 26, 2024 for the grant of service connection for back disability.

On September 22, 2023, the Veteran filed a VA Form 20-0995, a Supplemental Claim Application, identifying the September 2023 rating decision for back disability as the one being challenged. The Veteran also provided authorization to obtain private treatment records which showed diagnoses of osteoarthritic change of lower thoracic spine and lumbar lordosis dated November 7, 2022. A diagnosis of degenerative disc disease was also noted in May 2023 a diagnosis. In January 2024 rating decision, the RO denied entitlement to service connection for back disability on the basis of no event, disease or injury in service.

On July 26, 2024, the Veteran file a VA Form 20-0996 Request for Higher-Level Review of back disability adjudicated in the January 2024 rating decision. In February 2025 rating decision on appeal, the RO granted service connection for back disability and assigned a 10 percent rating effective July 26, 2024.

AMA implementing regulation 38 C.F.R. § 3.2500 (h)(1) provides, "Except as otherwise provided
diagnosis of degenerative disc disease was also noted in May 2023 a diagnosis. In January 2024 rating decision, the RO denied entitlement to service connection for back disability on the basis of no event, disease or injury in service.

AMA implementing regulation 38 C.F.R. § 3.2500 (h)(1) provides, "Except as otherwise provided by other provisions of this part, including § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in paragraph (c) of this section within one year of the issuance of the decision." The available review options in 38 C.F.R. § 3.2500 (c) include filing a supplemental claim, request a higher-level review, or appeal to the Board of Veterans' Appeals following notice of a decision on an initial claim or supplemental claim. That is precisely what occurred in this case.

The above demonstrates that the Veteran has continuously pursued the back claim since the February 13, 2023 initial claim and therefore pursuant to 38 C.F.R. § 3.2500(h)(1), the effective date in this case must be the date of receipt of the initial claim or the date entitlement arose, whichever is later. The date of the initial claim is February 13, 2023. The Veteran was diagnosed with back disability prior to the claim. As entitlement arose prior to the date of claim, the proper effective date for the grant of service connection for back disability is the February 13, 2023, date of claim.

Higher Ratings

Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or staged ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not rise to
by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

7. Chronic Sinusitis

The Veteran contends that entitlement to a 50 percent rating prior to December 14, 2023 for chronic sinusitis is warranted.

The Veteran is currently assigned an initial noncompensable rating from August 5, 2021 to March 6, 2023, 30 percent from March 6, 2023 to December 14, 2023, and 50 percent thereafter, for chronic sinusitis rated under 38 C.F.R. § 4.97, Diagnostic Code 6513, Sinusitis, maxillary, chronic. DC 6513 is rated pursuant to the general rating formula for sinusitis.

Under the general rating formula, a 10 percent rating is assigned where one or two incapacitating episodes of sinusitis per year require prolonged (lasting four to six weeks) antibiotic treatment or where there are three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The next and highest scheduler rating of 50 percent is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513.

A December 2021 private treatment record shows the Veteran reported constant nasal congestion particularly worse at night. His current treatment was Claritin-D.

A July 2022 private treatment record shows the Veteran experienced nasal congestion, postnasal drip, chronic face pressure, and ears plugging up. His nasal congestion was worse, and the worst side is usually the dependent side. He exhibited nasal cavity with congested mucosa. The Veteran tried multiple nasal sprays, but all caused headaches and did not help, and he had to discontinue.

A September 2022 VA examination report shows the Veteran reported occasional cough with yellow mucus, tiredness, and episodes of sinusitis around once per year. The Veteran's current treatment was Claritin D. There were no non-incapacitating episodes or incapacitating episodes in the past 12months. The Veteran had endoscopic sinus surgery in 2017.

A May 2023 VA examination report shows the Veteran reported recurrent runny nose and facial pain despite having had sinus related surgical procedures in 2013 and 2017. He had headaches, pain, tenderness, and purulent discharge due to chronic sinusitis. The Veteran's current treatment was Azelastine HCI 0.1 and Flonase. He did not receive any antibiotic treatment for his sinusitis. He had seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. There were no incapacitating episodes in the past 12 months. The Veteran had sinuplasty in 2013 and septoplasty in 2017.

The above reflects that from August 5, 2021, the evidence is at least evenly balanced as to whether the Veeran's chronic sinusitis symptoms have more nearly approximate the criteria for a 50 percent. Moreover, the Board cannot take account of the ameliorative effects of medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (the Board may not deny entitlement to a higher rating on the basis of relief provided by
pain and purulent discharge or crusting in the past 12 months. There were no incapacitating episodes in the past 12 months. The Veteran had sinuplasty in 2013 and septoplasty in 2017.

The above reflects that from August 5, 2021, the evidence is at least evenly balanced as to whether the Veeran's chronic sinusitis symptoms have more nearly approximate the criteria for a 50 percent. Moreover, the Board cannot take account of the ameliorative effects of medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). Additionally, the Board is not only required not to take account of ameliorative effects but must affirmatively "discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use." Ingram v. Collins, 38 Vet. App. 130, 131 (2025).

The record contains both medical and lay evidence that suggests that the Veteran experiences "near constant" symptoms of sinusitis, including headaches, pain and tenderness of the sinuses, and purulent discharge. The Veteran has consistently reported suffering from chronic sinusitis, including nasal drainage, mucus discharge, facial pressure, and headaches. The Veteran, as a layperson, is competent to report experiencing symptoms related to sinusitis such as headache, pain and tenderness of the sinuses, and purulent discharge. Moreover, there is nothing in the record to suggest that the Veteran lacks credibility; his reported symptoms are consistent with the record before the Board. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007). To the extent there are conflicts in the evidence as to the degree of the severity of the sinusitis symptoms, the reasonable doubt created by these conflicts have been resolved in favor of the Veteran, particularly when discounting the ameliorative effects of the medication. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

In addition, there is no evidence that the Veteran's sinusitis suddenly worsened on December 14, 2023, warranting a staged 0, 30, and 50 percent rating. Rather, in determining the appropriate effective date for the 50 percent rating, the Board must take into account all of the evidence including the lay evidence. Estevez v. McDonough, 36 Vet. App. 157, 175 (2023) ("As we have said before, the Board errs when it reflexively assigns the date of a VA examination as the date of an increased evaluation; instead, the Board must analyze the examination report alongside the other lay and medical evidence of record to determine when an increase in disability actually occurred") (citing Swain v. McDonald, 27 Vet. App. 219, 224-25 (2015) (rejecting the mechanical assignment of an effective date based on the date of examination and explaining that, for staged evaluation purposes, VA must examine all relevant facts to determine when an increase in a veteran's disability manifests); DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011) ("[A]n effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [a disability] first manifested")).

For the above reasons, entitlement to an initial rating of 50 percent, the maximum schedular rating is warranted from August 5, 2021, the effective date of the grant of service connection until December 14, 2023, when the Veteran is already in receipt of the maximum 50 percent schedular rating.

8. Allergic Rhinitis

The Veteran contends that entitlement to a 30 percent rating prior to December 14, 2023 for allergic rhinitis is warranted.

The Veteran's is currently assigned an initial noncompensable rating prior to December 14, 2023, and the maximum 30 percent thereafter for allergic rhinitis rated under Diagnostic Code 6522, applicable to allergic or vasomotor rhinitis. Under DC 6522, a rating of 10 percent is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522.

This rating code does not
prior to December 14, 2023 for allergic rhinitis is warranted.

This rating code does not contain provisions for a zero percent evaluation. In every instance 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.

At the September 2022 VA examination, the Veteran reported sneezing and occasional cough with yellow mucus. The Veteran's current treatment was Claritin-D. He did not exhibit a greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was no complete obstruction on one side due to rhinitis. There was no evidence of nasal polyps.

At the May 2023 VA examination, the Veteran reported facial pain and sneezing. The Veteran's current treatment was Azelastine HCI 0.1 and Flonase. He did not exhibit a greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was no complete obstruction on one side due to rhinitis. There was no evidence of nasal polyps.

Resolving reasonable doubt in favor of the Veteran, prior to December 14, 2023, the Veteran's allergic rhinitis have more nearly approximate the criteria for a 10 percent rating. The Boards find that an initial 10 percent rating is warranted based on Ingram, finding that without medication, the Veteran's allergic rhinitis would be productive of greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. However, a rating higher than 10 percent is not warranted. The Board highlights that prior to December 14, 2023, there is no evidence of record indicating that the Veteran has allergic rhinitis with polyps or that medication affects polyps.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating higher than 10 percent is warranted. Rather, the evidence persuasively weighs against an initial rating higher than 10 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

9. Back

The Veteran's back disability is currently evaluated at 10 percent under Diagnostic Code 5242, pertaining to the General Rating Formula for Diseases and Injuries to the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242.

That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned:

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.

Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code.

Under Note 5, unfavorable ankylosis is defined as a condition
A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.

Under Note 5, unfavorable ankylosis is defined as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 20 percent rating is assigned. When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned.

Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

In addition to considering range of motion findings, Board must also evaluate evidence of a Veteran's inability to perform "normal working movements" with "strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (citing 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). For rating purposes, all "possible manifestations" of functional loss must be evaluated, and one such manifestation cannot be evaluated to the exclusion of others. See Mitchell, 25 Vet. App. at 36-37; 38 C.F.R. § 4.40 ("Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled"). In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that the additional range of motion lost due to flare-ups must be estimated.

A May 2023 private treatment record shows the Veteran complained of recurrent back pain for a few months with intermittent ache and soreness along the lower back. His symptoms worsen with prolonged sitting. The Veteran's current pain medications and treatments include Tylenol. The Veteran was prescribed medication and referred for physical therapy.

The Veteran was afforded a VA examination in December 2024. He denied flare-ups of the lumbar spine. He reported having difficulty standing, sitting for long periods of time, difficulty lifting heavy items, and stiffness being worst in the morning hours. The Veteran's current treatment was Diclofenac 50mg. His lumbar forward flexion was to 65 degrees with pain. He performed repetitive use testing with no additional loss of motion. There was no objective evidence of localized tenderness, guarding, or muscle spasm. The Veteran's muscle strength was normal. There was no evidence of atrophy. His reflex and sensory exams were normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis. There were
flare-ups of the lumbar spine. He reported having difficulty standing, sitting for long periods of time, difficulty lifting heavy items, and stiffness being worst in the morning hours. The Veteran's current treatment was Diclofenac 50mg. His lumbar forward flexion was to 65 degrees with pain. He performed repetitive use testing with no additional loss of motion. There was no objective evidence of localized tenderness, guarding, or muscle spasm. The Veteran's muscle strength was normal. There was no evidence of atrophy. His reflex and sensory exams were normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis. There were no other neurological abnormalities. The examiner indicated that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran did not use an assistive device. The examiner determined that the Veteran's lumbar spine impacts his ability to work.

The Board acknowledges the December 2024 VA examination report indicating the Veteran denied having flareups. However, considering the Veteran has not been examined during a flareup throughout the course of the appeal, it cannot be stated with certainty as to the precise limitation of motion experienced during flare-up periods, the record is reasonably clear that the Veteran experiences additional motion loss during flare-ups, described as limited movement. Given the additional motion loss during periods of activity or flare-ups, a 20 percent rating for lower back based on estimated motion loss during flare-up periods is warranted. The evidence of record further indicates the Veteran's continuous use of medication to alleviate symptoms. Any amelioration from medication cannot be considered in determining the appropriate rating in this case. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). Additionally, pursuant to Ingram v. Collins, 38 Vet. App. 130 (2025), the Board is required to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use. Here, while the December 2024 VA examiner recounted the Veteran's history with medication, he did not estimate its ameliorative effect on the range of motion of the lumbar spine.

A rating in excess of 20 percent, however, is not warranted. The evidence of record does not demonstrate that the Veteran's experienced flareups resulting in limitation of motion more nearly approximating lumbar forward flexion at 30 degrees or less. For example, the December 2024 VA examination report shows the Veteran's forward flexion was to 65 degrees with pain. He performed repetitive-use testing with no additional loss of motion. There was no evidence of muscle spasm and guarding. Moreover, the VA examiner indicated that there was no evidence of ankylosis. In addition, the Veteran does not contend, and the evidence does not reflect that he has suffered from incapacitating episodes due to IVDS. Therefore, the evidence of record indicates that the Veteran's lumbar spine disability more nearly approximates the criteria for a 20 percent rating.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating higher than 20 percent is warranted. Rather, the evidence persuasively weighs against an initial rating higher than 20 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

10. Eczema

The Veteran's eczema is currently evaluated as noncompensable under Diagnostic Code 7806, pertaining to General Rating Formula For The Skin. 38 C.F.R. § 4.118, Diagnostic Code 7806.

Effective August 13, 2018, VA amended the criteria for rating skin disabilities. As the Veteran's Intent to File a Claim was received in February 2023, only the new criteria are applicable to the present appeal. Additionally, from August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a).

Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected.

A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period.

A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period.

A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body, or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period.

Additionally, the disability could be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824.

An August 2023 VA examination report shows the Veteran reported the onset of eczema in 2005 on his neck, legs and bilateral arms. He indicated that the course symptoms come and go. The Veteran had been treated with topical medication in the past 12 months for six weeks or more, but not constant. He had not been treated with corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs in the past 12 months. His total body area exposed was less than five percent.

A December 2023 VA examination report shows the Veteran reported the use of creams to manage symptoms of eczema that come and go. He used topical corticosteroids identified as hydrocortisone 1% topical ointment, halobetasol topical ointment, triamcinolone topical ointment, mometasone topical ointment, fluocinonide topical ointment in the past 12 months constant/near-constant. He used an oral antihistamine, Claritin-D in the past 12 months constant/near-constant. He used other topical medication, identified as tacrolimus topical ointment, mupirocin topical antibiotic ointment, lidocaine topical cream, clotrimazole antifungal ointment six weeks or more, but not constant. His total body area exposed was less than five percent.

Based on the consideration of the above-cited evidence, including the medical evidence and the lay statements of record, the Board finds that a compensable rating is not warranted. For example, August 2023 and December 2023 VA examination reports demonstrate the Veteran's eczema had not affected at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent of
other topical medication, identified as tacrolimus topical ointment, mupirocin topical antibiotic ointment, lidocaine topical cream, clotrimazole antifungal ointment six weeks or more, but not constant. His total body area exposed was less than five percent.

Based on the consideration of the above-cited evidence, including the medical evidence and the lay statements of record, the Board finds that a compensable rating is not warranted. For example, August 2023 and December 2023 VA examination reports demonstrate the Veteran's eczema had not affected at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent of exposed areas affected. The examiners also indicated that the Veteran's eczema had not been treated with intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. There is no indication that the Veteran ever used a systemic treatment, nor has the Veteran argued as such. Thus, the next higher rating of 10 percent is not warranted.

11. PTSD

The Veteran is currently evaluated at 50 percent for his service-connected PTSD. The criteria for rating PTSD are contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 50 percent rating is assigned when there is evidence demonstrating occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

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

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place, memory loss for names of close relatives, own occupation, or own name.

Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held "that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration." Id. at 117. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116.

For the following reasons, an increased rating of 70 percent is warranted for the Veteran's PTSD.

In this case, throughout the entire appeal period, the Veteran's PTSD was manifested by symptoms and impairment that more nearly approximate the criteria for a 70 percent rating. Specifically, a June 2023 VA examination report shows the Veteran's exhibited suicidal ideation. In Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017), the Court held that suicidal ideation means a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, and does not require suicidal intent, a plan, or preparatory behavior. The Court also held that the language of the general rating formula indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Additionally, the June 2023 and December 2023 VA examination reports show the Veteran exhibited irritable behavior and angry outburst, typically expressed as verbal or physical aggression toward people or objects. Based on the evidence of record, including the medical records and the Veteran's competent and credible statements, the Board finds that the Veteran's symptoms and impairment more nearly approximated occupational and social impairment with deficiencies in most areas.

The Veteran was not, however, entitled to a higher 100 percent rating during any period on appeal. The VA examination reports show that the Veteran did not experience symptoms such as grossly inappropriate behavior, persistent delusions or hallucinations, or persistent danger of hurting self or others. The Veteran's thought content did not appear delusional or psychotic. On numerous occasions the Veteran denied any auditory or visual hallucinations. The Veteran did not demonstrate disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The VA examination report does not demonstrate he was inappropriately dressed, with poor hygiene and grooming. He was also alert and oriented to all spheres. The Veteran remains married to his second spouse of seven years and has two stepchildren living at home. He has some support with Veteran group through wounded warrior project. Moreover, the Veteran works for a State Port as a maintenance manager for 22 years, thus reflecting that his occupational and social impairment do not more nearly approximate total. The June 2023 and December 2023 VA examiners concluded that the Veteran's PTSD symptoms were equivalent to occupational and social impairment with reduced reliability and productivity. Thus, the Veteran's PTSD did not cause impairment that more nearly approximated total social impairment and a rating higher than 70 percent is not warranted.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating higher than 70 percent is warranted. Rather, the evidence persuasively weighs against an increased rating higher than 70 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REMAND

12. Liver

The issue of service connection for liver condition is remanded to correct a duty to assist error that occurred prior to the January 2024 rating decision. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).

At the August 2023 VA examination, the examiner opined that the claimed condition claimed condition was less likely than not (likelihood is less than approximately balanced or nearly equal) caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The rationale noted the diagnosis of NASH (non-alcoholic steatohepatitis), a condition in which the liver has a buildup of fat deposits. The examiner indicated that the risk factors for this condition include obesity, metabolic syndrome, and diabetes.
5103A(f)(2)(A); 38 C.F.R. § 20.802(a).

The evidence of record indicate the Veteran was obese during the period on appeal. The Veteran's attorney contends that an opinion as to whether the liver condition is related to service-connected disabilities with obesity as an intermediate step was not provided. See July 2024 VA Form 20-0996 Request for Higher-Level Review. The Board agrees, and a remand is therefore warranted for a VA opinion because this is a pre-decisional duty to assist error and the Board is required to remand AMA claims for correction of such errors. 38 C.F.R. § 20.802 (a).

13. Eczema

The issue of entitlement to an initial compensable rating for eczema is remanded to correct a duty to assist error that occurred prior to the January 2024 rating decision. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).

At the August 2023 VA examination, the reported that his eczema on his neck, legs and bilateral arms impacts his ability to work as it causes itching and irritation. He further reported that he lost one week of work time in the last 12 months due to his eczema.

Consistent with VA's duty to maximize benefits, the Board has considered all possible schedular bases for separate disability ratings, as well as secondary service connection, before considering whether an extraschedular rating is warranted to address symptoms not contemplated by the applicable diagnostic code. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018). See also Bailey v. Wilkie, 33 Vet. App. 188 (2021) (pursuant to 38 C.F.R. § 3.155(d)(2), a formal claim for secondary service connection is not required if a separate disability caused by the disability for which a higher rating is sought is raised by the evidence).

The initial extraschedular referral decision under § 3.321(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that "application of the regular schedular standards" is impractical because the disability is "exceptional or unusual... with such related factors as marked interference with employment or frequent periods of hospitalization." Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular disability rating to the Director of Compensation Service. 38 C.F.R. § 3.321(b)(1).

As the above evidence reflects that there is sufficient evidence to substantiate a reasonable possibility that application of the regular schedular standards is impractical because the disability is exceptional or unusual... with such related factors as marked interference with employment or frequent periods of hospitalization,' remand for referral of consideration of an extraschedular rating is warranted.

The matters are REMANDED for the following action:

1. Obtain an opinion from an appropriate clinician to determine the etiology of the Veteran's liver disability. If an examination is deemed necessary, one should be conducted. The claims file must be reviewed by the clinician. The clinician should answer the following question:

a.) Is it at least as likely as not (at least a 50 percent probability) that any liver disability is related to active service?

(b.) If not, is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities caused him to become obese?

(c.) If so, was the obesity, as a result of the service-connected disabilities, a substantial
warranted.

The matters are REMANDED for the following action:

a.) Is it at least as likely as not (at least a 50 percent probability) that any liver disability is related to active service?

(b.) If not, is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities caused him to become obese?

(c.) If so, was the obesity, as a result of the service-connected disabilities, a substantial factor in causing or aggravating the liver disability?

(d.) Would the Veteran's liver disability have not occurred but for the obesity caused by service-connected disabilities?

If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible.

The examination report must include a complete rationale for all opinions expressed.

2. Take appropriate action consistent with the amendment to 38 C.F.R. § 3.321(b)(1), Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830, 57,833 (Dec. 8, 2017), to include submitting the Veteran's claim for an extraschedular rating for eczema to the Director of Compensation.

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Walker, 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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