SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

DANETTE MINCEY · 2026 · Case ID: A26034443

MIXED

Summary

The Veteran, who served in the U.S. Naval Reserve from July 1988 to July 1991, appeals the denial of service connection for several conditions and challenges existing ratings. The Veteran sought service connection for sleep apnea, an acquired psychiatric disorder (persistent depressive disorder and generalized anxiety disorder), chronic fatigue syndrome, respiratory insufficiency (dyspnea), bilateral restless leg syndrome, bilateral tremors of the hands, chronic headaches, facial dermatosis, erectile dysfunction, and varicocele. The Veteran also appealed the assigned ratings for a left foot mass, bilateral pes planus, chronic sinusitis, and allergic rhinitis. The Board reviewed new and relevant evidence, including a November 2022 lay statement from a fellow service member, which attributed the Veteran's sleep apnea to service and indicated its onset during service. The Board found this evidence sufficient to reopen the sleep apnea claim. Applying the benefit of the doubt, service connection for sleep apnea, the acquired psychiatric disorder, restless leg syndrome, tremors, headaches, facial dermatosis, erectile dysfunction, and varicocele were granted. The Board found that the Veteran did not have separate diagnoses of chronic fatigue syndrome or dyspnea. The claims for chronic fatigue syndrome and respiratory insufficiency were denied. For the left foot mass, a 10% rating was granted. The Board denied increased ratings for bilateral pes planus and chronic sinusitis, as well as a compensable rating for allergic rhinitis, finding the evidence did not support the higher criteria or the claimed severity.

Rationale

New and relevant evidence submitted after prior denial; Lay statement from fellow service member attributes condition to service; Benefit of the doubt applied

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230927-383756

Full Decision Text

Citation Nr: A26034443
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 230927-383756
DATE: April 14, 2026

ORDER

New and material evidence has been submitted to readjudicate the service connection claim for sleep apnea.

Entitlement to service connection for sleep apnea is granted.

Entitlement to service connection for an acquired psychiatric disorder, diagnosed as persistent depressive disorder and generalized anxiety disorder (an acquired psychiatric disorder) is granted.

Entitlement to service connection for chronic fatigue syndrome is denied.

Entitlement to service connection for respiratory insufficiency (dyspnea) is denied.

Entitlement to service connection for bilateral restless leg syndrome is granted.

Entitlement to service connection for bilateral tremors of the hands is granted.

Entitlement to service connection for chronic headaches is granted.

Entitlement to service connection for facial dermatosis is granted.

Entitlement to service connection for erectile dysfunction, to include service connection for loss of use of a creative organ, as due to varicocele is granted.

Entitlement to service connection for varicocele is granted.

Entitlement to a rating of 10 percent, but no higher, for left fourth toe subungual exophytic soft tissue mass (a left foot disability) is granted.

Entitlement to a rating in excess of 50 percent for bilateral pes planus is denied.

Entitlement to a rating in excess of 10 percent for chronic sinusitis is denied.

Entitlement to a compensable rating for allergic rhinitis is denied.

FINDINGS OF FACT

1. The Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for sleep apnea in a final March 2020 Rating Decision; new and relevant evidence to reopen the service connection claim was received in a January 2023 Supplemental Claim.

2. Affording the Veteran the benefit of the doubt, the Veteran's sleep apnea onset in service and is etiologically related to service.

3. Affording the Veteran the benefit of the doubt, the Veteran's acquired psychiatric disorder, bilateral restless leg syndrome, bilateral tremors of the hands, chronic headaches, facial dermatosis, erectile dysfunction and varicocele onset in service and are etiologically related to service.

4. The Veteran does not have separate diagnoses or symptoms of chronic fatigue syndrome or dyspnea.

5. During the period reviewed, the Veteran's left foot disability is productive of moderate symptoms; moderately-severe symptoms have not been shown.

6. During the period reviewed, the Veteran is in receipt of the schedular maximum 50 percent rating for bilateral pes planus.

7. During the period reviewed, the Veteran's sinusitis is characterized by three to six non-incapacitating episodes per year of sinusitis; the evidence does not show 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.

8. During the period reviewed, the Veteran's allergic rhinitis is characterized by intermittent sinus pressure, head congestion, watery, itchy eyes and post-nasal drip, as well as intermittent sluggishness; the evidence does not indicate greater than 50-percent obstruction of nasal passage on both sides, complete obstruction on one side, or polyps.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim for service connection for a sleep disorder, to include sleep apnea have been met. 38 C.F.R. § 3.156(d).

2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as persistent depressive disorder and generalized anxiety disorder (an acquired psychiatric disorder) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria for entitlement to service connection for respiratory insufficiency (dyspnea) have not been met. 38 U.S.C. §§ 1110, 1112
.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria for entitlement to service connection for respiratory insufficiency (dyspnea) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for entitlement to service connection for bilateral restless leg syndrome have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

7. The criteria for entitlement to service connection for bilateral tremors of the hands have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

8. The criteria for entitlement to service connection for chronic headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

9. The criteria for entitlement to service connection for facial dermatosis have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

10. The criteria for entitlement to service connection for erectile dysfunction, to include service connection for loss of use of a creative organ have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

11. The criteria for entitlement to service connection for varicocele have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

12. The criteria for entitlement to a rating of 10 percent, but no higher, for left fourth toe subungal exophytic soft tissue mass (a left foot disability) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284

13. The criteria for entitlement to a rating in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5284.

14. The criteria for entitlement to a rating in excess of 10 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.97, DC 6512.

15. The criteria for entitlement to a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.97, DC 6522.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Naval Reserve
5284.

14. The criteria for entitlement to a rating in excess of 10 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.97, DC 6512.

15. The criteria for entitlement to a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.97, DC 6522.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Naval Reserve from July 1988 to July 1991.

The Appeals Modernization Act (AMA) automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400 (a)(1). Here, an August 2023 Rating Decision issued by a Department of VA Agency of Original Jurisdiction (AOJ), denied the claims on appeal. The August 2023 Rating Decision constitutes an initial decision; therefore, the AMA applies.

In the September 2023 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as evidence submitted with or within 90 days of the VA Form 10182. 38 C.F.R. § 20.303.

New and Relevant Evidence

Service connection for sleep apnea was first denied in a final March 2020 Rating Decision.

VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the actual record before agency adjudicators. Id. § 3.2501(a)(1). Relevant evidence is evidence that tends to prove or disprove a matter at issue. Id.

For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501(b).

Here, the Board finds that the Veteran submitted evidence after the March 2020 final denial in the Legacy system; specifically, a November 2022 lay statement from the Veteran's fellow former service member submitted in January 2023 attributes the Veteran's sleep apnea to service, showing that it onset in service and continued since service. Further, the evidence is new and relevant to his claims. Specifically, it tends to prove or disprove continuity, the matter at issue in the Veteran's service connection claim.

This evidence was not already of record prior to the March 2020 Legacy Rating Decision and may tend to prove or disprove a nexus to the Veteran's service. Readjudication of the claim is therefore warranted.

Service Connection

1. Entitlement to service connection for obstructive sleep apnea (sleep apnea)

The Veteran asserts entitlement to service connection for sleep apnea. The Board finds that the approximate balance of the evidence is in favor of finding that the Veteran's sleep apnea onset in service and herein grants service connection.

Generally, to establish service connection for a present disability, "the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a "nexus," or causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Aggravation of a pre-existing condition beyond the natural progression is presumed where the disability increases in severity over the course of service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. This presumption is rebuttable by clear and unmistakable evidence that the increase is attributable to the natural progression of the condition. 38 C.F.R. § 3.306 (b). Secondary service connection is granted when it is shown that a disorder was proximately caused or aggravated by a service-connected injury or disorder. 38 C.F.R. § 3.310.

The Veteran asserts that he developed sleep apnea as a result of service, to include as a result of burn pit exposure. While the Veteran does not expressly state when his symptoms began to his VA examiner or in his written statements, the Veteran's fellow service member, in a buddy statement submitted
1153; 38 C.F.R. § 3.306. This presumption is rebuttable by clear and unmistakable evidence that the increase is attributable to the natural progression of the condition. 38 C.F.R. § 3.306 (b). Secondary service connection is granted when it is shown that a disorder was proximately caused or aggravated by a service-connected injury or disorder. 38 C.F.R. § 3.310.

The Veteran asserts that he developed sleep apnea as a result of service, to include as a result of burn pit exposure. While the Veteran does not expressly state when his symptoms began to his VA examiner or in his written statements, the Veteran's fellow service member, in a buddy statement submitted in January 2023, reports that they were stationed together on USS HALEAKALA (AE-25) from March 1989 to February 1991. He recounts noticing the Veteran snoring louder than average, and that he and his fellow shipmates would tease the Veteran over it, stating that it sounded like cutting down trees with a saw. The witness also recounts that the Veteran could fall asleep very easily in different environments. In short, the lay evidence indicates that the Veteran's symptoms began in service, and continue to the present day. For reasons discussed herein, service connection is warranted.

First, the July 2023 Rating Decision, concedes that the Veteran has a current diagnosis of obstructive sleep apnea. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Moreover, the Veteran has presented competent and credible evidence that his sleep apnea likely had its onset in service. As an initial matter, the Veteran reports in an April 2023 treatment note heavy snoring and cessation of breathing during sleep while on active duty, and that the same symptoms persist without hiatus to the present.

Indeed, in a February 2017 initial evaluation note, the Veteran reports a history of sleep apnea, and a 2001 sinorhinoplasty that did not relieve symptoms. The Veteran reported to his May 2023 VA examiner current use of a CPAP machine.

The January 2023 buddy statement corroborating the Veteran's narration of the onset of sleep apnea, and is consistent with the Veteran's service documents recording his service on USS HALEAKALA. Affording the Veteran the benefit of the doubt, this testimony and the timing of the 2001 procedure and the 2009 sleep study corroborates the Veteran's sleep apnea having onset in service, and continued since service.

As his fellow service member, the Veteran's wife is competent to testify the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Board notes the absence of symptoms recorded in service, and the passage of 23 years between the Veteran's separation and his initial presentation for evaluation. Notably, while the Veteran reports a 2001 sinorhinoplasty and a 2009 sleep study, the Board finds the Veteran's statements to his treating providers and the January 2023 buddy statement sufficient to warrant a grant of service connection for sleep apnea. Specifically, sleep apnea was among the first disorders for which the Veteran sought service connection in December 2019. With insufficient reason to place the Veteran's credibility at issue, continuity of symptomatology is established by both the competent medical evidence of record and the Veteran's and his fellow service member's competent testimony.

Service connection can also be awarded when the medical evidence of record supports a showing of a nexus between service and current symptoms. Here, the Board notes that the Veteran's May 2023 VA examiner determined that the Veteran's sleep apnea was more likely due to his unhealthy lifestyle choices such as "not getting enough regular physical activity, obesity, decreased neck girth, and enlarged tonsils" than the claimed in-service burn pit exposure. Given that a service-related etiology of his obesity has not been ruled out, this explanation is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the subsequent June 2023 VA examination opinion is also inadequate because it impermissibly relies on the lack of evidence of complaints
when the medical evidence of record supports a showing of a nexus between service and current symptoms. Here, the Board notes that the Veteran's May 2023 VA examiner determined that the Veteran's sleep apnea was more likely due to his unhealthy lifestyle choices such as "not getting enough regular physical activity, obesity, decreased neck girth, and enlarged tonsils" than the claimed in-service burn pit exposure. Given that a service-related etiology of his obesity has not been ruled out, this explanation is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the subsequent June 2023 VA examination opinion is also inadequate because it impermissibly relies on the lack of evidence of complaints of in-service symptoms. Further, the Veteran and his fellow service member, both competent and credible witnesses, noticed distinct symptoms of sleep apnea during their service that the Veteran asserts were not present before his deployment. The credible recounting of distinctive symptoms of sleep apnea, place the evidence showing a medical nexus to service in approximate balance with the evidence showing the absence of a nexus. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (holding exact equipoise is not required for benefit of the doubt to be applied. The Federal Circuit stated that the "preponderance of the evidence" standard can be confusing due to its link with the idea of exact equipoise).

The June 2023 C&P examiner's opinion is thus outweighed by the Veteran's and his fellow service member's competent and credible testimony, recalling distinct symptoms of sleep apnea, to include apneic events, and excessive daytime fatigue. The opinion rendered relies exclusively on the lack of recorded in-service symptoms, and impermissibly discounts the testimony discussed above, Especially given his status as his shipmate, the Veteran and his fellow former service member are competent to report unique, observable symptomatology of a disorder. See Barr at 307-308.

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. This standard does not require the evidence to be exactly equal; rather, it includes "scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021).

Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007).

Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation.

Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('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'); 38 C.F.R. § 3.159 (a)(2).

In this case, the Board finds that the lay testimony of symptoms places the Veteran's appeal at least in an approximate balance. The persuasive weight of the evidence supports a finding that the Veteran's sleep apnea onset during or as a proximate result of his time in service. Accordingly, the Board resolves reasonable
21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('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'); 38 C.F.R. § 3.159 (a)(2).

In this case, the Board finds that the lay testimony of symptoms places the Veteran's appeal at least in an approximate balance. The persuasive weight of the evidence supports a finding that the Veteran's sleep apnea onset during or as a proximate result of his time in service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and grants service connection for obstructive sleep apnea. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as persistent depressive disorder and generalized anxiety disorder (an acquired psychiatric disorder)

The Veteran contends that his psychiatric disorder is related to service, claiming that his rating should be 100 percent.

The Board concludes that the Veteran has a current disability that is related to in-service events. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In its August 2023 Rating Decision, the AOJ conceded current diagnoses of generalized anxiety disorder and persistent depressive disorder. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim.

The evidence against the claim includes the significant 26-year gap in time between the Veteran's separation from service in 1991 and the first appearance of his symptoms in medical records in 2017. In a February 2017 medical record, the Veteran complains of mental health symptoms since 2015 - 24 years since his separation. The evidence also points to some internal inconsistency and inconsistency with other evidence in the record, including the lack of a specific report about the in-service stressor events, and the February 2017 mental status examination citing stressors of a demanding job and family life, as opposed to any service-related incident.

The evidence in favor of the claim is a January 2023 Disability Benefits Questionnaire (DBQ). The Veteran's January 2023 examiner opined that the Veteran's acquired psychiatric disability is at least as likely as not related to an in-service injury, event or disease. The Veteran reported to his January 2023 examiner that his depression onset due to feelings of being trapped and hopeless, as he completed dangerous assignments during his service. Based on the Veteran's statements, the examiner opined that the Veteran's symptoms began during service and persisted through his time in service to the present. Specifically, he contends that symptoms have led to limitations on his functioning at home, work, and in the social environment. According to the examiner, this includes a significant lack of positive emotional experiences and a marked lack of interest, as well as vegetative symptoms of depression, reporting feelings of sadness and dissatisfaction with current life circumstances, excessive worry, and rumination. Based on his interview in this January 2023 DBQ, the examiner offered a positive nexus opinion.

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current generalized anxiety disorder and persistent depressive disorder are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for generalized anxiety disorder and persistent depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

3. Entitlement to service connection for chronic fatigue syndrome

4. Entitlement to service connection for respiratory insufficiency (dyspnea)

The Veteran seeks service connection for chronic fatigue syndrome, contending that he suffers from lessened lung capacity on breathing out.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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
that he suffers from lessened lung capacity on breathing out.

In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome or dyspnea, nor has he at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The March 2023 and May 2023 VA examiner determined that, while the Veteran experienced subjective symptoms of shortness of breath and fatigue, the Veteran did not have separate diagnoses of dyspnea or a fatigue-related disorder. Further, despite treatment records being of record from January 2017 to November 2020 and several examinations, available treatment records do not contain a diagnosis of a respiratory disorder or fatigue.

While the Veteran's non-VA examiner, M.T., states that the Veteran has current diagnoses of chronic fatigue syndrome and dyspnea, there is no indication that she performed diagnostic tests to confirm the presence of these diagnoses. Rather, the statement appears to be based on the Veteran's self-reported medical history, which is inconsistent with available treatment records that show subjective complaints of tiredness, but no diagnosis of chronic fatigue syndrome or dyspnea. Indeed, the April 2023 C&P examiner's report indicates that spirometry testing was done, and that the Veteran's FEV-1/FVC ratio accurately reflects the Veteran's level of disability. The single breath method was not used because it was not indicated in the Veteran's particular case. Furthermore, the Veteran's oxygen saturation level was measured at 97 percent. A review of the Veteran's treatment records, to include a November 2020 list of active VA and non-VA prescribed medications, indicates prescriptions for cholecalciferol and cyanocobalamin, but not for chronic fatigue syndrome or dyspnea. The VA examiner also reports that the Veteran's constant tiredness and memory fog progressed to insomnia, rather than true chronic fatigue syndrome. Consequently, the Board gives more probative weight to the VA examiner's findings.

While the Veteran believes there are current diagnoses of chronic fatigue syndrome and dyspnea, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence.

5. Entitlement to service connection for bilateral restless leg syndrome

6. Entitlement to service connection for bilateral tremors of the hands

7. Entitlement to service connection for chronic headaches

8. Entitlement to service connection for facial dermatosis

9. Entitlement to service connection for erectile dysfunction, to include service connection for loss of use of a creative organ, as due to varicocele

10. Entitlement to service connection for varicocele

The Veteran seeks service connection for bilateral restless leg syndrome, bilateral tremors of the hands, chronic headaches, facial dermatosis, erectile dysfunction, and varicocele. The Board finds that service connection for these disorders is warranted.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.
service connection for chronic headaches

8. Entitlement to service connection for facial dermatosis

9. Entitlement to service connection for erectile dysfunction, to include service connection for loss of use of a creative organ, as due to varicocele

10. Entitlement to service connection for varicocele

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).

In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995).

Specific to Persian Gulf War service, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms to include muscle and joint pain, and signs and symptoms involving the respiratory system. The chronic disability must have become manifest either during active military, naval, or air service in the Southwest Asia theater of military operations during the Persian Gulf War, or to a degree of 10 percent or more disabling not later than December 31, 2021; and must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The PACT Act eliminated the requirement that the qualifying chronic disability manifest to a compensable degree within a certain period.

Additionally, VA will presume that a veteran was exposed to burn pit and other environmental hazards if, on or after August 2, 1990, the veteran performed active military, naval, air, or space service while assigned to a duty station in, including the air space above, Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, or the United Arab Emirates (UAE). 38 U.S.C. § 1119 (c)(1)(A).

The Board also notes recent enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, also known as the Honoring our PACT Act of 2022 (hereinafter referred to as the PACT Act), a new law that expands VA health care and benefits for veterans exposed to burn pits or other toxic substances during military service. As it pertains to this case, the PACT Act lists several diseases or illnesses that can be considered presumptively service-connected if a veteran was exposed to burn pits or toxic substances specifically during the Gulf War and post 9/11 eras. Veterans who were exposed to burn pits or other toxic substances specifically during the Gulf War and post 9/11 eras are eligible for presumptive service connection if they have a current disability diagnosed as brain cancer, glioblastoma, respiratory cancer of any type (as relevant here), gastrointestinal cancer of any type, head cancer of any type, kidney cancer, melanoma, asthma (diagnosed after service), chronic rhinitis, chronic sinusitis, constructive bronchiolitis or obliterative bronchitis, emphysema, granulomatous disease, interstitial lung disease (ILD), pleuritis, pulmonary fibrosis, sarcoidosis, chronic bronchitis, and chronic obstructive pulmonary disease (COPD). 38 U.S.C. § 1120, see also Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, H.R. 3967 117th Cong. (2021-2022) (the "PACT Act.")

In this case, service connection for the above disorders is warranted.

First, the RO conceded in its August 2023 Rating Decision that the Veteran has a current diagnosis of each of these disorders. Accordingly, a current diagnosis as to each of these disorders is conceded.

Moreover, the Veteran has presented competent and credible evidence that his bilateral restless leg syndrome, bilateral tremors of the hands, chronic headaches, facial dermatosis, erectile dysfunction, and varicocele likely had their onset in service. At his April 2023 VA examination, the Veteran reported that symptoms began in 1989 or 1990, which is during his active service, but became noticeably worse over time.

Restless Leg Syndrome

The Veteran states that in October of 1990, his legs began twitching at night and it was keeping him awake. He did not get seen for this during or after service, and his symptoms have remained consistent. A positive April 2023 nexus opinion indicates that the Veteran's restless leg syndrome is "directly and causally" related to military service.

Bilateral Hand Tremors

The Veteran states that in late 1990, he started to notice that his hands would shake and tremble intermittently throughout the day, especially when holding something and trying to write or type. He did not get seen for this during or after service, and his symptoms have become slightly worse. They interfere with his ability to hold a coffee cup and to write letters with a pen or pencil or use a computer. A positive April 2023 nexus opinion states that the Veteran reports tremors of the hands and has been progressively symptomatic since his Gulf War service, and states that the Veteran's bilateral hand tremors are "as likely as not that ... directly and causally related to the Veteran]'s military service. This is a permanent condition which had its' onset during deployment to The Southwest Asia Theater of Military Operations and has persisted to the present."

Headaches

The Veteran states that starting 1990 and over time, he began noticing headaches with increasing frequency and severity. He did not get seen while in service, but did self-medicate with OTC medications. Since separation from service, the Veteran has been diagnosed with migraine headaches and given medications. A positive April 2023 nexus opinion states that the Veteran's headaches are "as likely as not ... directly and causally related to [the Veteran]'s military service. This is a permanent condition which had its onset during deployment to ... Southwest Asia."

Facial Dermatosis

In an April 2023 record, the Veteran states he has chronic dermatosis which appears on his face and has been progressively symptomatic since Gulf War service. A positive nexus opinion reports that the Veteran's dermatosis is "as likely as not ... directly and causally related to [the Veteran]'s military service ... had its onset during deployment to The Southwest
TC medications. Since separation from service, the Veteran has been diagnosed with migraine headaches and given medications. A positive April 2023 nexus opinion states that the Veteran's headaches are "as likely as not ... directly and causally related to [the Veteran]'s military service. This is a permanent condition which had its onset during deployment to ... Southwest Asia."

Facial Dermatosis

Varicocele and ED

At his April 2023 VA examination, the Veteran reported that in 1989, he noticed a lump by his testicles and went to be seen for this and was worked up and found that he had a varicocele and was told to keep an eye on it and come back if needed. Furthermore, he states that in 2001, he began to notice that over time he was having trouble achieving and maintaining an erection. He received various prescriptions over time and currently takes anastrozole and testosterone.

Affording the Veteran the benefit of the doubt, the above corroborates the Veteran's bilateral restless leg syndrome, bilateral tremors of the hands, chronic headaches, facial dermatosis, erectile dysfunction, and varicocele having onset in service, and continued since service.

The Veteran is competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Board notes the absence of symptoms recorded in service, and the passage of over 30 years between the Veteran's separation in 1991, and his application for service connection for the above disorders submitted in January 2023. It is reasonable to assume that, given with the other disabilities from which the Veteran suffered, he tolerated these symptoms until he was convinced to seek service connection for them. Accordingly, continuity of symptomatology is established by both the competent medical evidence of record and the Veteran's competent testimony.

Service connection can also be awarded when the medical evidence of record supports a showing of a nexus between service and current symptoms. Here, the Board notes that the Veteran's April 2023 VA examiner offered positive nexus opinions for the above disabilities. Further, the Veteran, a competent and credible witness, reports that he noticed distinct symptoms of bilateral restless leg syndrome, bilateral tremors of the hands, chronic headaches, facial dermatosis, erectile dysfunction, and varicocele, both in service and after. The credible recounting of distinctive symptoms of these disorders, show an approximate balance in favor of showing a medical nexus to service.

The Board notes June 2023 negative nexus opinions as to the Veteran's restless leg syndrome, bilateral hand tremor, migraines, facial dermatosis, ED, and varicocele.

The examiner opined that the Veteran's RLS is less likely related to the indicated TERA, 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 (TERA) of the veteran. Specifically, the examiner noted factors outside of military service, including a genetic component to RLS, as well as low iron levels in the brain. There is no medical or scientific evidence available that provides any indication of a relationship between the development of the Veteran's RLS and the TERA.

The June 2023 examiner opined that the Veteran's hand tremor is less likely related to the indicated TERA, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all TERAs of the veteran. Specifically, the examiner noted that most types of tremor are idiopathic, though some appear to run in families. Tremors occur on their own or may be associated with a number of neurological disorders. The examiner was unable to narrow down the etiology of the Veteran's tremors to the TERA, stating there is no medical or scientific evidence available that provides any indication of a relationship between the development of the hand tremors and the TERA.

The June 2023 examiner opined that the Veteran's migraines are less likely related to the indicated TERA, after considering the total potential exposure through all applicable military deployments
through all applicable military deployments of the veteran and the synergistic, combined effect of all TERAs of the veteran. Specifically, the examiner noted that most types of tremor are idiopathic, though some appear to run in families. Tremors occur on their own or may be associated with a number of neurological disorders. The examiner was unable to narrow down the etiology of the Veteran's tremors to the TERA, stating there is no medical or scientific evidence available that provides any indication of a relationship between the development of the hand tremors and the TERA.

The June 2023 examiner opined that the Veteran's migraines are less likely related to the indicated TERA, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all TERAs of the veteran. Specifically, the examiner noted factors outside of military service, including emotional triggers such as stress, depression, anxiety, excitement, and shock, physical causes like tiredness and insufficient sleep, shoulder or neck tension, poor posture, and physical overexertion, to even low blood sugar and jet lag. There is no medical or scientific evidence available that provides any indication of a relationship between the development of migraines and the TERA.

The June 2023 examiner opined that the Veteran's facial dermatosis is less likely related to the indicated TERA, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all TERAs of the veteran. Specifically, the examiner noted factors outside of military service, including daily environmental allergens and food allergies, and materials worn next to the skin. There is no medical or scientific evidence available that provides any indication of a relationship between the development of the Veteran's facial dermatosis and the TERA.

The June 2023 examiner opined that the Veteran's ED is less likely related to the indicated TERA, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all TERAs of the veteran. Specifically, the examiner noted factors outside of military service, including heart disease, high cholesterol, high blood pressure, diabetes, obesity, and smoking, as well as mental factors like depression, anxieties, stress, and relationship problems, can also promote ED. There is no medical or scientific evidence available that provides any indication of a relationship between the development of the Veteran's RLS and the TERA.

The June 2023 examiner opined that the Veteran's varicocele is less likely related to the indicated TERA, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all TERAs of the veteran. Specifically, the examiner observed that the believed cause of varicoceles is defective valves in the veins within the scrotum that regulate the flow of blood to and from the testicles. When normal flow does not occur, the blood backs up, causing the veins to enlarge. There is no medical or scientific evidence available that provides any indication of a relationship between the development of the Veteran's varicocele and the TERA.

Each of these June 2023 opinions was rendered without mention of the Veteran's competent and credible statements of continuity of symptoms since service, focusing on the effects of the conceded TERA. The Veteran is competent to report unique, observable symptomatology of a knee disorder. See Barr v. Shinseki, 21 Vet. App. 303, 307-308 (2007).

Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr at 308. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v
, it includes "scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021).

In this case, the Board finds that the lay testimony of symptoms places the approximate balance of the evidence in favor of the Veteran's appeal. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and grants service connection for bilateral restless leg syndrome, bilateral tremors of the hands, chronic headaches, facial dermatosis, erectile dysfunction, and varicocele. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4.

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 portray 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 enervation, 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995)

11. Entitlement to a rating of 10 percent, but no higher, for left fourth toe subungal exophytic soft tissue mass (a left foot disability)

In this case, a rating of 10 percent, but no more for a left foot disability is warranted.

The rating period begins on January 14, 2023. Specifically, the RO granted service connection in a final May 2020 Rating Decision, assigning a rating of noncompensable from November 13, 2019. On January 14, 2023, over a year after issuance of the May 2020 Rating Decision, the Veteran submitted a new claim, VA Form 21-526EZ asserting entitlement to an increased rating. The RO denied a compensable rating in the August 2023 Rating Decision on appeal. Accordingly, the rating period begins on January 14, 2023.

The Veteran's left foot disability is rated under DC 7819 for benign neoplasms of the skin.
The rating period begins on January 14, 2023. Specifically, the RO granted service connection in a final May 2020 Rating Decision, assigning a rating of noncompensable from November 13, 2019. On January 14, 2023, over a year after issuance of the May 2020 Rating Decision, the Veteran submitted a new claim, VA Form 21-526EZ asserting entitlement to an increased rating. The RO denied a compensable rating in the August 2023 Rating Decision on appeal. Accordingly, the rating period begins on January 14, 2023.

The Veteran's left foot disability is rated under DC 7819 for benign neoplasms of the skin. Under this DC, a compensable rating is available for disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment of function. As the former two categories do not seem applicable, the Board recharacterizes the Veteran's left foot disability as a "foot injuries, other," ratable under DC 5284.

Under this DC, a 10 percent rating is assigned for moderate foot injury. A 20 percent rating is assigned for moderately severe foot injury. A severe foot injury warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5284. A Note to DC 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot.

The words "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities, nor in the section of the M21-1 pertaining to musculoskeletal disabilities of the foot. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Words such as "moderate" and "severe" are not defined in DC 5284, or elsewhere in the rating schedule in a way that might be applicable to DC 5284. In the absence of an express definition, words are given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)).

Ordinarily, the adjective "moderate" is defined as "not violent, severe, or intense;" and "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited July 22, 2025). "Severe," as an adjective, is defined as "causing discomfort or hardship;" "very painful or harmful;" "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited July 22, 2025).

"Moderately severe" is not defined in the referenced dictionary but is understood to capture symptomatology between moderate and severe. For illustrative purposes, it is interpreted to mean an injury of such severity that it causes more than average pain with more than average functional impairment, such as limited ability to perform physical activities.

It is noted that the Veteran has not provided any definitions of those terms for the Board's consideration. In this case, the Board finds that a rating of 10 percent but no higher is warranted during the period on review, as the evidence establishes that the disability most nearly approximates a moderate, but not a moderately-severe, foot injury.

Specifically, the Veteran's left foot disability is not intense, and is limited in its scope and affect. However, it does not cause more than average pain and functional impairment." Indeed, in April 2020, the Veteran's left fourth toe was shown to be tender to palpation. At his April 2023 VA examination, the Veteran reported constant pain with walking when his foot shifts in the shoe. This causes constant pain while carrying out his job duties as a firefighter.

case, the Board finds that a rating of 10 percent but no higher is warranted during the period on review, as the evidence establishes that the disability most nearly approximates a moderate, but not a moderately-severe, foot injury.

Lay evidence thus establishes that the Veteran's pain and impairment cause pain that is not severe or intense, and limited in scope and effect. Specifically, the Veteran reported pain with prolonged standing, especially at work, due to the pain in his left foot when wearing shoes. The Board finds that the Veteran's left foot pain is limited to situations where he is wearing shoes, and is thus limited in its scope and effect. This pain or impairment, while significant, is not more than average. Accordingly, the Veteran's VA treatment records support the award of an increased 10 percent rating under DC 5284 for a moderate foot injury. However, the Board finds that as the Veteran's pain is only upon prolonged standing wearing shoes, the symptoms are not intrinsically more than average. Finally, as the Veteran's April 2023 C&P examiner noted, the Veteran does not have diagnoses of other disabilities rated under the Diagnostic Code; additionally, his April 2023 C&P examiner noted that his disability is treated with medication; however, it seems from this examination report that the corticosteroid treatment is more for the Veteran's facial rash than his left foot disability. Accordingly, a rating of 10 percent, but no higher, for a left foot disability, is warranted.

12. Entitlement to a rating in excess of 50 percent for bilateral pes planus

The Veteran seeks a rating in excess of the 50 percent granted for service-connected bilateral pes planus.

The RO received the Veteran's Intent to File form was received on May 6, 2022. Service connection for pes planus was granted in an August 2023 Rating Decision, assigning a 50 percent rating from May 6, 2022. The Veteran sought an increased rating in his September 2023 VA Form 10182. Thus, the period reviewed begins May 6, 2022.

Under DC 5276, a noncompensable rating is assigned for mild flatfoot; symptoms relieved by a built-up shoe or arch support. A 10 percent rating is granted for moderate symptoms; weight-bearing line over or medial to great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet, either bilateral or unilateral. A unilateral disability which is severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities, is granted a 20 percent rating. A 30 percent rating is assigned for a unilateral foot disability which is pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achillis on manipulation, not improved by orthopedic shoes or appliances. Finally, a 50 percent rating requires pronounced symptoms in both feet. Specifically, the evidence must show marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.38 C.F.R. § 4.71a, DC 5276.

Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. As with any regulatory interpretation where the terms are not defined in the regulation, we presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018). The Board finds that these terms are unambiguous and, therefore, a plain dictionary meaning is an appropriate definition. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also 38 C.F.R. § 4.6 (noting, in general, the Board does not evaluate evidence by applying a mechanical formula, but rather conscientiously to the end that its decisions are equitable and just). According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 200
regulation, we presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018). The Board finds that these terms are unambiguous and, therefore, a plain dictionary meaning is an appropriate definition. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also 38 C.F.R. § 4.6 (noting, in general, the Board does not evaluate evidence by applying a mechanical formula, but rather conscientiously to the end that its decisions are equitable and just). According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect or average in amount, intensity, quality, or degree. The term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Webster's New World Dictionary (2nd ed. 1999), 1012. "Severe" means very painful or harmful or of a great degree. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6

The Veteran's disability is presently rated under Diagnostic Code (DC) 5276. Specifically, at his April 2023 VA examination, the Veteran reported arch pain interfering with his work as a firefighter. The Veteran endorsed pain on swelling. characteristic calluses, not relieved by arch supports. He also endorsed extreme tenderness of plantar surfaces on both feet, not improved by orthotics

The Veteran did not show marked pronation, marked inward displacement, and severe spasm of the tendo achillis on manipulation. However, the Board is without authority to decrease the Veteran's 50 percent rating in a way that would, as here, decrease his overall rating. Accordingly, the Board finds that a rating in excess of the maximum 50 percent rating is not warranted

13. Entitlement to a rating in excess of 10 percent for chronic sinusitis

The Veteran is seeking a rating in excess of 10 percent for his service-connected sinusitis.

Under DC 6512, a compensable rating must show:

" one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting (10 percent); or

" 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 (30 percent rating).

In order to warrant a maximum schedular rating of 50 percent, the evidence must show:

" Chronic sinusitis following radical surgery with chronic osteomyelitis (50 percent); or

" Near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries (50 percent).

See 38 C.F.R. § 4.97, Diagnostic Code 6512.

After a review of the evidence of record, the Board determines that a rating in excess of 10 percent is not warranted. Specifically, while the Veteran has endorsed six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge during the appeal period, he has not had more than six, nor has he experienced incapacitating episodes of sinusitis, nor has he had radical surgery (despite having endoscopic surgery), or near-constant symptoms during the appeal period.

Indeed, the Veteran's April 2023 DBQ indicates no incapacitating episodes in the previous 12 months, but it indicates 6 non-incapacitating episodes in the previous 12 months. Furthermore, the DBQ reports that these episodes are characterized by pain, headaches, pain, and purulent discharge, squarely as contemplated by the schedular 10 percent rating.

In this case, the Board finds that the findings in the April 2023 DBQ warrant a 10 percent rating during the period reviewed. Accordingly, the above symptomatology most closely
nor has he experienced incapacitating episodes of sinusitis, nor has he had radical surgery (despite having endoscopic surgery), or near-constant symptoms during the appeal period.

In this case, the Board finds that the findings in the April 2023 DBQ warrant a 10 percent rating during the period reviewed. Accordingly, the above symptomatology most closely resembles a 10 percent rating.

To warrant a 30 percent rating, there must be either 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. Since there are no more than six non-incapacitating episodes per year, and since there are no incapacitating episodes, a 30 percent rating is not for application.

To warrant a 50 percent rating, there must be either radical surgery with chronic osteomyelitis, which is not shown; or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The rating criteria for sinusitis are progressive or successive in nature, and the 50 percent criteria are presented in the conjunctive, using the phrase "and." Therefore, all criteria must be demonstrated to award the higher rating. As the Veteran has not had radical surgeries, nor has he had constant symptoms, the 50 percent rating criteria have not been met during the period reviewed. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The weight of the evidence is against the Veteran's claim and a rating in excess of 10 percent is not warranted

14. Entitlement to a compensable rating for allergic rhinitis

The Veteran asserts entitlement to a compensable rating for allergic rhinitis, asserting that his symptoms are more severe than currently rated. Specifically, at his April 2023 VA examination, the Veteran endorsed intermittent sinus pressure, head congestion, watery itchy eyes and postnasal drip.

The Veteran's service-connected allergic rhinitis is currently rated as noncompensable under DC 6522, which specifically contemplates allergic or vasomotor rhinitis. 38 C.F.R. § 4.97, DC 6522.

Under DC 6522, the minimum 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. Id. A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis when there are polyps present. Id. Of note, a 20 percent rating is not available in the rating schedule.

Therefore, to warrant the minimum 10 percent rating in this claim, the evidence must demonstrate that both nasal passages together are more than half obstructed, or that one side is completely obstructed. Here, the Veteran underwent a VA examination in April 2023, where he was diagnosed with allergic rhinitis. Upon examination, his nostrils were examined and neither side showed complete obstruction, nor did either side show greater than 50 percent obstruction of the nasal passage. This is the basis of the assigned noncompensable rating. Moreover, nasal polyps were not found upon examination.

The Board notes that the examination report did not comment on the ameliorative effects of medicine. See Ingram v. Collins, 38 Vet. App. 130 (2025). However, the Board finds no indication in the medical or lay evidence that this medication ameliorates the obstruction of nasal passages to the point where there would be greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side; nor does the medical or lay evidence indicate that the medication is used to inhibit the formation of polyps Thus, a 30 percent rating for allergic rhinitis is also not warranted.

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his disability is worse than the rating he currently receives. Specifically, the Veteran reports difficulty wearing shoes, inability to walk for extended periods, and sinus pressure with head congestion, itchy watery eyes, and post-nasal drip. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to
than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side; nor does the medical or lay evidence indicate that the medication is used to inhibit the formation of polyps Thus, a 30 percent rating for allergic rhinitis is also not warranted.

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his disability is worse than the rating he currently receives. Specifically, the Veteran reports difficulty wearing shoes, inability to walk for extended periods, and sinus pressure with head congestion, itchy watery eyes, and post-nasal drip. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

On the other hand, such competent evidence concerning the nature and extent of the Veteran's left foot disability, allergic rhinitis, pes planus, and sinusitis has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that the rating as assigned in this decision is proper.

Lastly, the Board notes that a claim for TDIU is part and parcel of a rating issue when unemployability is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran does not assert unemployability, nor is TDIU reasonably raised by the record.

In sum, the Board herein reopens the Veteran's service connection claim for sleep apnea and grants service connection for sleep apnea and a 10 percent rating but no higher, for a left foot disability. The Board must deny service connection for chronic fatigue syndrome, dyspnea, an acquired psychiatric disorder, restless leg syndrome, bilateral tremors of the hands, headaches, facial dermatosis, erectile dysfunction, to include service connection for loss of use of a creative organ, as due to varicocele, service connection for varicocele, a rating in excess of 50 percent for bilateral pes planus, a rating in excess of 10 percent for chronic sinusitis, and a compensable rating for allergic rhinitis.

Danette Mincey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Maskatia, Zaheer

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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