POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The Veteran served from June 2000 to June 2008. The Veteran appeals the denial of service connection for posttraumatic stress disorder (PTSD), hearing loss, and an increased rating for anxiety and depressive disorders. The appeal regarding tinnitus was dismissed. The Board denied service connection for PTSD, finding the Veteran's symptoms did not meet DSM-5 criteria and that the claimed military sexual trauma (MST) stressor lacked corroboration. The Board noted the Veteran was already service-connected for anxiety and depression, making a recharacterization of the PTSD claim duplicative. For hearing loss, the Board denied service connection, finding no current disability for VA purposes, as the only audiological evaluation showing loss was from 25 years prior to the claim, and a more recent evaluation showed normal hearing. The claim for an increased rating for anxiety and depressive disorders was denied, as the Veteran's symptoms, while meeting some criteria for a 50 percent rating, did not meet the criteria for a 70 percent rating. The Board found the Veteran's social impairment more closely approximated reduced reliability, and there was no established occupational impairment. Claims for a back condition, hand condition, and sleep apnea were remanded for further development, including VA examinations, due to a duty-to-assist error.

Rationale

No current diagnosis of PTSD per DSM-5 criteria.; Claimed MST stressor lacked corroboration.; Recharacterization to anxiety/depression would be duplicative.

Full Decision Text

Citation Nr: A26032505
Decision Date: 04/08/26	Archive Date: 04/08/26

DOCKET NO. 250328-533221
DATE: April 8, 2026

ORDER

Entitlement to service connection for posttraumatic stress disorder is denied.

Entitlement to service connection for hearing loss is denied.

Entitlement to an initial rating in excess of 50 percent for unspecified anxiety disorder with unspecified depressive disorder is denied.

The appeal regarding the deferred claim of entitlement to service connection for tinnitus is dismissed.

REMANDED

Entitlement to service connection for back condition is remanded.

Entitlement to service connection for hand condition is remanded.

Entitlement to service connection for sleep apnea is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran has had posttraumatic stress disorder at any time during or approximate to the pendency of the claim.

2. The evidence of record persuasively weighs against finding that the Veteran has had a diagnosis of bilateral hearing loss sufficient for VA purposes at any time during or approximate to the pendency of the claim.

3. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas.

4. The March 2025 rating decision deferred adjudication of the issue of entitlement to service connection for tinnitus.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for posttraumatic stress disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125.

2. The criteria for service connection for hearing loss are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

3. The criteria for a disability rating in excess of 50 percent for unspecified anxiety disorder with unspecified depressive disorder are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413.

4. The criteria for dismissal of the appeal regarding tinnitus are met.  38 U.S.C. §§ 7104(c), 7105; 38 C.F.R. §§ 20.104(a), 20.105, 20.201, 20.205.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2000 to June 2008.  The Board recognizes the Veteran's service to our country, and the sacrifices it necessarily entailed.

The rating decisions on appeal were issued in January and March 2025 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the March 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 respective agency of original jurisdiction (AOJ) decisions on appeal.  38 C.F.R. § 20.301.  Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 20.801.

However, because the Board is remanding the claims of entitlement to service connection for sleep apnea, a back condition, and a hand condition, 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).

Service Connection

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

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt
 incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (the benefit-of-the-doubt rule applies if the competing evidence is in approximate balance).

1. Entitlement to service connection for posttraumatic stress disorder

The Veteran seeks service connection for posttraumatic stress disorder (PTSD) as a result of in-service stressors.  The Veteran is currently service connected for unspecified anxiety disorder with unspecified depressive disorder.

The Veteran originally submitted claims for social anxiety disorder and PTSD.  See VA 21-526EZ, February 16, 2024, and October 4, 2024.  The Veteran described a military sexual trauma (MST) associated with these claims, in addition to multiple stressors of other types.  Based on the opinion of a VA examiner, the AOJ granted service connection for anxiety and depression but denied service connection for PTSD.  PTSD was denied because the Veteran's symptoms did not meet the diagnostic criteria for PTSD and because the Veteran's statements about the MST could not be corroborated.  See Rating Decision, October 4, 2025.  

The Veteran was afforded two psychological VA examinations.  Both examiners concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD but instead, provided diagnoses of unspecified anxiety disorder and unspecified depressive disorder.  See C&P Exam, January 17, 2025, March 3, 2025.  The latter examiner also concluded that the evidence did not corroborate the occurrence of the MST stressor.  See C&P Exam, March 3, 2025.

Applicable Laws and Regulations

Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s).  See 38 C.F.R. § 3.304(f). 

If the claimed stressor is not combat related, a Veteran's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by "credible supporting evidence." Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the Veteran's military records and all pertinent medical and lay evidence.  Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f).

Any finding favorable to the claimant made by a VA adjudicator is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless the favorable finding is rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.  38 U.S.C. § 3.104(c).  However, unfavorable findings are not binding on subsequent adjudicators.

Analysis

At the outset, the Board does not afford the AOJ's finding that the MST lacks corroborating evidence any legal force or effect.  As this finding is not favorable to the Veteran, it is not binding on the Board or any subsequent adjudicators.

The Board need not address the question of whether the MST is corroborated in this PTSD claim because it is not necessary to adjudicate the claim.  Because the Veteran's symptoms do not meet the DSM-5 criterion A, the claim for PTSD must still be denied.  38 C
 identifies a clear and unmistakable error in the favorable finding.  38 U.S.C. § 3.104(c).  However, unfavorable findings are not binding on subsequent adjudicators.

Analysis

At the outset, the Board does not afford the AOJ's finding that the MST lacks corroborating evidence any legal force or effect.  As this finding is not favorable to the Veteran, it is not binding on the Board or any subsequent adjudicators.

The Board need not address the question of whether the MST is corroborated in this PTSD claim because it is not necessary to adjudicate the claim.  Because the Veteran's symptoms do not meet the DSM-5 criterion A, the claim for PTSD must still be denied.  38 C.F.R. § 4.125(a).  According to the VA examiner, the Veteran's claimed MST and his symptoms do not meet criteria A and C of the DSM-5.  See C&P Exam, March 3, 2025.  Without a diagnosis of PTSD under the DSM-5 criteria, service connection for PTSD is not warranted.  Consequently, the Board need not make findings regarding whether the Veteran's MST was sufficiently corroborated.

The Board has considered recharacterizing the claim for PTSD as a claim for the alternate diagnoses provided by the VA examiners.  Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that "may reasonably be encompassed by" the description of the claim and symptoms and other submitted information).  While anxiety and depression may reasonably be encompassed by the Veteran's symptoms, recharacterizing this claim for PTSD is not necessary.  The Veteran is already service connected for anxiety and depression; recharacterizing the claim for PTSD would be duplicative.

Because there is no evidence on record that provides a diagnosis of PTSD, the weight of the evidence is against this claim, and the benefit-of-the-doubt rule does not apply.  Entitlement to service connection for PTSD is not warranted.

2. Entitlement to service connection for hearing loss

The Veteran seeks service connection for hearing loss as a result of hazardous noise from power tools, gunshots, and missile launches during active service.

On the audiological evaluation prior to service in July 1999, pure tone thresholds, in decibels, were as follows:

  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	 5	0	0	5	0

LEFT	0	0	35	40	25

Speech audiometry results were not recorded.

No further in-service audiological evaluations are of record.  The Veteran submitted this claim in February 2024.

On the authorized audiological evaluation in September 2024, pure tone thresholds, in decibels, were as follows:

  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	5 	0	5	15	10

LEFT	5	5	15	20	20

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear.  See C&P Exam, September 20, 2024.

Applicable Laws and regulations

The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  See also Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that limiting hearing disabilities to frequencies below 6000hz is a permissible interpretation of "disability.")

As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Analysis

The Veteran contends that he is entitled to service connection for hearing loss.  The Board concludes that the Veteran does not have a current hearing loss disability and has not had one at any time during
 percent.  38 C.F.R. § 3.385.  See also Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that limiting hearing disabilities to frequencies below 6000hz is a permissible interpretation of "disability.")

As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Analysis

The Veteran contends that he is entitled to service connection for hearing loss.  The Board concludes that the Veteran does not have a current hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Service connection is therefore not warranted.  38 C.F.R. § 3.303(a), (d).

While the Veteran's 1999 entrance examination indicated hearing loss for VA purposes in the Left ear, his only other audiogram showed normal hearing in both ears.  The highest threshold value in either ear at any frequency was 20 decibels.  This value is not high enough to support a current hearing loss for VA purposes.  Furthermore, speech audiometry percentages were above 94 percent in both ears.  See C&P Exam, September 20, 2024. 

The record is negative for any evidence, other than the Veteran's own generalized assertion that he is entitled to service connection for hearing loss, of a current hearing loss for VA purposes.  The Veteran did not present any medical evidence of a hearing loss disability for VA purposes.  While an audiological evaluation in 1999 showed hearing loss in the left ear, this claim was filed 25 years later.  The only other audiological evaluation occurred after the Veteran filed this claim and there is no evidence of record indicating hearing loss for VA purposes during the pendency of this claim.

The Board therefore finds that the probative evidence of record is not in approximate balance in favor of the Veteran and is against finding that he has had a hearing loss disability at any time during or recent to the pendency of the current claim.  As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection is therefore not warranted.  38 C.F.R. § 3.303.

3. Entitlement to an initial rating in excess of 50 percent for unspecified anxiety disorder with unspecified depressive disorder

The Veteran seeks an initial rating in excess of 50 percent for unspecified anxiety disorder with unspecified depressive disorder.

The Veteran experienced several in-service stressors but did not seek treatment during service.  The Veteran may have had mental health issues that were unknown to him at the time.  In addition to the in-service stressors, the Veteran also experience relationship discordance during service as well as a divorce.  See C&P Exam, January 17, 2025.  Currently, the Veteran has difficulty connecting and communicating with others, even family members.  See VA 21-526EZ, February 16, 2024.  The record does not contain any psychological treatment records at all.  The only evidence is the two VA examinations.

The January 2025 examiner determined that the Veteran's occupational and social impairment was best described as "mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress."  The Veteran struggles interacting with others due to trust issues and anxiety or nervousness around meeting people.  He isolates socially and has low motivation around activities.  For rating purposes, the examiner indicated symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory loss, such as forgetting names, directions or recent events.  The Veteran's speech, thought processes, and hygiene were not to be normal and appropriate.  The Veteran was noted to be currently employed.  See C&P Exam, January 17, 2025.

The March 2025 examiner determined that the Veteran's occupational and social impairment was best described as "Occupational and social impairment with reduced reliability and productivity."  The Veteran related that he "pretty much" doesn't leave the house and doesn't have local family or friends to socialize with.  Episodes of depression, panic attacks, or anxiety without an identifiable cause were noted, as well as obsessive behaviors.  For rating purposes, the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, suspiciousness, and mild memory loss, such as forgetting names, directions or recent events.  The Veteran's speech, use of language, and thought processes were noted to be normal and appropriate.  See C&P Exam, March 3,
The March 2025 examiner determined that the Veteran's occupational and social impairment was best described as "Occupational and social impairment with reduced reliability and productivity."  The Veteran related that he "pretty much" doesn't leave the house and doesn't have local family or friends to socialize with.  Episodes of depression, panic attacks, or anxiety without an identifiable cause were noted, as well as obsessive behaviors.  For rating purposes, the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, suspiciousness, and mild memory loss, such as forgetting names, directions or recent events.  The Veteran's speech, use of language, and thought processes were noted to be normal and appropriate.  See C&P Exam, March 3, 2025.

Applicable Laws and Regulations

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show a distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.) Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran's unspecified anxiety disorder with unspecified depressive disorder is evaluated under the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413.  Under the General Rating Formula: 

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

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

A 70 percent evaluation is warranted for 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 and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 

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

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating
 the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). 

Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, and that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118. 

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  See 38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment.  See 38 C.F.R. § 4.126(b).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3.

Analysis

The Veteran exhibits some symptoms of the criteria for a 30 percent rating.  The Veteran's speech, thought processes, and affect were normal.  Memory loss was noted to be mild, without impairment of short or long term memory.

The Veteran also exhibits some symptoms of the criteria for a 50 percent rating.  It was noted that the Veteran experiences episodes of depression and panic attacks without an identifiable cause, although the frequency of panic attacks is not indicated on the record.  These symptoms indicate disturbances in motivation and mood.  Further, it was noted that the Veteran doesn't spend time socializing and rarely leaves his home.  This indicates at least some difficulty establishing and maintaining effective social relationships.

Because the Veteran exhibits some symptoms of both a 30 percent and 50 percent rating, the Board must determine which rating is more closely approximated.  However, as the Veteran's current rating is 50 percent, the Board cannot assign a 30 percent rating because it is bound by the more favorable 50 percent.

The Board finds that an assignment of a 70 percent rating is not warranted.  Although obsessive behaviors were noted in the March 2025 VA examination, there is no indication that these behaviors interfere with routine activities as contemplated by a 70 percent rating.  While there is evidence that the Veteran may be unable to establish effective social relationships, the evidence of record does not establish an inability to start or maintain effective work relationships.  There is no indication that the Veteran experiences any difficulty with relationships with his co-workers or his superiors.

The Veteran does not experience illogical speech, or impaired impulse control.  The Veteran has denied suicidal ideation, either active or passive, and does not exhibit irritability or impaired impulse control.  His hygiene was noted to be appropriate, and he is able to function independently.  Overall, the Veteran does not exhibit any symptoms contemplated by a 70 percent rating.

In sum, the Board finds that the Veteran's social impairment more closely approximates reduced reliability, and the evidence does not establish any occupational impairment.  Therefore, entitlement to an initial rating in excess of 50 percent is not warranted
 to start or maintain effective work relationships.  There is no indication that the Veteran experiences any difficulty with relationships with his co-workers or his superiors.

The Veteran does not experience illogical speech, or impaired impulse control.  The Veteran has denied suicidal ideation, either active or passive, and does not exhibit irritability or impaired impulse control.  His hygiene was noted to be appropriate, and he is able to function independently.  Overall, the Veteran does not exhibit any symptoms contemplated by a 70 percent rating.

In sum, the Board finds that the Veteran's social impairment more closely approximates reduced reliability, and the evidence does not establish any occupational impairment.  Therefore, entitlement to an initial rating in excess of 50 percent is not warranted.

4. Entitlement to service connection for tinnitus

The Veteran seeks service connection for tinnitus, specifically noting that disability in his Notice of Disagreement.  See VA Form 10182, March 28, 2025.

However, neither rating decision on appeal adjudicated a claim for tinnitus.  Nor has any other rating decision adjudicated a claim for tinnitus within a year prior to the submission of the Notice of Disagreement.  Both the January 2025 and the March 2025 rating decisions identified by the Veteran deferred the adjudication of tinnitus, pending further development.

In an appeal involving multiple issues, the Notice of Disagreement must identify the specific issues with which the appellant disagrees.  38 C.F.R. § 20.202.  "The term issue means an adjudication of a specific entitlement..."  Id.  As to the issue of entitlement to service connection for tinnitus, the March 2025 neither granted or denied benefits.  Instead, the decision was deferred until a later date.  A "decision to defer a ruling until a later date does not constitute a final decision by the administrative agency."  Shipley v. Shinseki, 24 Vet. App. 458, 462 (2011).  Because an adjudication was not made in the rating decision regarding entitlement to service connection for tinnitus, the Board has nothing to review.  The issue of tinnitus is not properly before the Board, and the Board cannot consider it.  38 C.F.R. § 20.103.  Therefore, the appeal to the issue of entitlement to service connection for tinnitus must be dismissed.

REASONS FOR REMAND

Duty to Assist

With all claims for benefits, VA has the duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary [of VA]." 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c). 

Remand is required to correct a pre-decisional duty-to-assist error in VA's duty to assist the Veteran.  VA's duty to assist includes obtaining evidence necessary to substantiate the claim, which may include a thorough and contemporaneous medical examination.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121, 124 (1991).

1. Entitlement to service connection for back condition is remanded.

The Veteran seeks service connection for a low back disability.  He asserts that daily running and marching during active service has caused discomfort in his lower back.  See VA 21-526EZ, February 16, 2024.

The VA did not provide the Veteran with a medical examination in connection with this claim.  The Board notes that a VA examination or opinion must be obtained if there is (1) competent evidence of a current disability; (2) evidence of an in-service event, injury, or illness; (3) an indication that a current, claimed disability may be associated with the Veteran's service or another service-connected disability; and (4) the record contains insufficient competent medical evidence to make a decision.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran's lay statement on the initial claim application provided evidence of a current disability, evidence of an in-service event, and an indication that the current disability may be associated with the Veteran's service.  Therefore, the AOJ's failure to provide a VA examination is a pre-decisional duty-to-assist error, and remand is required for correction.

2. Entitlement to service connection for hand condition is remanded.

The Veteran seeks service connection for a hand condition.  He asserts that during service, his hand was caught in a pulley.  See VA 21-526EZ, February 16, 2024.

The VA did not provide the Veteran with a medical examination
. App. 79 (2006).

The Veteran's lay statement on the initial claim application provided evidence of a current disability, evidence of an in-service event, and an indication that the current disability may be associated with the Veteran's service.  Therefore, the AOJ's failure to provide a VA examination is a pre-decisional duty-to-assist error, and remand is required for correction.

2. Entitlement to service connection for hand condition is remanded.

The Veteran seeks service connection for a hand condition.  He asserts that during service, his hand was caught in a pulley.  See VA 21-526EZ, February 16, 2024.

The VA did not provide the Veteran with a medical examination in connection with this claim.  The Veteran's lay statement on the initial claim application provided evidence of a current disability, evidence of an in-service event, and an indication that the current disability may be associated with the Veteran's service.  Therefore, the AOJ's failure to provide a VA examination is a pre-decisional duty-to-assist error, and remand is required for correction.

3. Entitlement to service connection for sleep apnea is remanded.

The Veteran seeks service connection for obstructive sleep apnea.  He asserts that he was always a quiet sleeper prior to active service.  During service, the Veteran asserts that he began snoring and was unsatisfactorily rested after sleep.  See VA 21-526EZ, February 16, 2024.

The VA did not provide the Veteran with a medical examination in connection with this claim.  The Veteran's lay statement on the initial claim application provided evidence of a current disability, evidence of an in-service event, and an indication that the current disability may be associated with the Veteran's service.  Therefore, the AOJ's failure to provide a VA examination is a pre-decisional duty-to-assist error, and remand is required for correction.

The matters are REMANDED for the following action:

Schedule the Veteran for VA examinations for the claimed conditions regarding the lower back, hand, and for obstructive sleep apnea.  The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's conditions manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

Are the claimed disabilities at least as likely as not related to service, including having their onset during active service.  

Provide a rationale to support the opinion(s).  

In providing the requested opinions, consider the Veteran's descriptions of the in-service injuries and symptoms as well as post-service symptoms.  If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of the current disability, this should be noted.  Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

 

 

J. JACK

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Chris Bumgarner, Associate 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.