Case A26038488

ANTHONY C. SCIRÉ, JR · 2026 · Case ID: A26038488

MIXED

Summary

The veteran, who served in the U.S. Marine Corps from December 1968 to June 1970, appeals the denial of service connection for obstructive sleep apnea and the effective dates assigned for his psychiatric disability, TDIU, and Dependents' Educational Assistance (DEA) benefits. He also contested the denial of a higher evaluation for his bilateral hearing loss. The Board granted an effective date of May 13, 2019, for a 70 percent rating for his psychiatric disability, finding that his symptoms met the criteria for this rating since that date, but denied a higher rating or total disability for this condition. The Board granted entitlement to TDIU and DEA benefits effective May 13, 2019, finding the veteran unable to secure substantially gainful employment due to his service-connected disabilities. The Board denied a higher rating for bilateral hearing loss, as audiometric tests and the VA examiner's opinion indicated the veteran's hearing impairment did not meet the criteria for a rating exceeding 10 percent. Service connection for obstructive sleep apnea was granted based on secondary service connection to his PTSD, with the Board resolving doubt in the veteran's favor after considering conflicting medical opinions.

Rationale

Symptoms meet criteria for 70% rating; Evidence persuasively weighs against total impairment; Benefit of doubt resolved in veteran's favor

Service Branch

MARINE CORPS

Special Benefit

TDIU

Docket No.

210507-158009

Full Decision Text

Citation Nr: A26038488
Decision Date: 04/24/26 Archive Date: 04/24/26

DOCKET NO. 210507-158009
DATE: April 24, 2026

ORDER

Entitlement to an effective date of May 13, 2019, but no earlier, for the award of a 70 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) with alcohol use disorder in early remission (psychiatric disability) is granted; a total disability rating for the psychiatric disability is denied.

Entitlement to an effective date of May 13, 2019, but no earlier, for the award of a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is granted.

Entitlement to an effective date of May 13, 2019, but no earlier, for the award of eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 (Chapter 35) is granted.

Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is denied.

Entitlement to service connection for obstructive sleep apnea is granted.

FINDINGS OF FACT

1. On May 13, 2019, the Veteran filed a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking an evaluation in excess of 50 percent for his service-connected psychiatric disability; it was not factually ascertainable that an increase in disability had occurred within the one year period immediately preceding the date of receipt of the May 13, 2019 claim for an increased rating.

2. After resolving reasonable doubt in the Veteran's favor, the signs and symptoms of his psychiatric disability have manifested with occupational and social impairment with deficiencies in most areas since May 13, 2019; however, the evidence persuasively weighs against finding that the Veteran's psychiatric disability has manifested by total occupational and social impairment during the appeal.

3. After resolving reasonable doubt in the Veteran's favor, he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability and bilateral hearing loss since May 13, 2019.

4. After resolving reasonable doubt in the Veteran's favor, he had a permanent and total service-connected disability since May 13, 2019, at which time entitlement to a TDIU rating was awarded.

5. The Veteran's bilateral hearing loss has been productive of a puretone threshold average of 54 decibels (dB) in the right ear and 64 dB in the left ear, and speech recognition ability of 94 percent in each ear, at worst, during the appeal.

6. After resolving reasonable doubt in the Veteran's favor, his obstructive sleep apnea is caused by his service-connected psychiatric disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date of May 13, 2019, but no earlier, for the award of a 70 percent disability rating, but no higher, for the psychiatric disability have been met; the criteria for a total disability rating for the psychiatric disability have not been met during the appeal. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151(a), 3.155, 3.160, 3.400, 3.2400, 3.2500, 4.3, 4.125, 4.130, Diagnostic Code (DC) 9411.

2. The criteria for entitlement to an effective date of May 13, 2019, but no earlier, for the award of a TDIU rating have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.156, 3.400, 4.16(a).

3. The criteria for entitlement to an effective date of May 13, 2019, but no earlier, for the award of eligibility to DEA benefits under Chapter 35 have been met. 38 U.S.C. §§ 3500, 3501, 3510, 5107, 5110; 38 C.F.R. §§ 3.400, 21.3020, 21.3021.

4. The criteria for entitlement to a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R.
156, 3.400, 4.16(a).

4. The criteria for entitlement to a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100.

5. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty in the U.S. Marine Corps from December 1968 to June 1970.

This appeal comes before the Board from May 2020 and March 2021 rating decisions. In the May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim of entitlement to service connection for obstructive sleep apnea. In the March 2021 rating decision, the AOJ granted the increased rating claim for the psychiatric disability by assigning a disability rating of 70 percent since March 27, 2020. In the March 2021 rating decision, the AOJ also awarded a TDIU rating and DEA benefits since March 27, 2020, but denied the claim of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss. The Veteran appealed the denial of service connection for obstructive sleep apnea in the May 2020 rating decision to the Board. The Veteran also appealed the effective dates assigned for the 70 percent disability rating for the psychiatric disability and the awards of a TDIU rating and DEA benefits, as well as the denials of higher evaluations for the psychiatric disability and bilateral hearing loss in the March 2021 rating decision to the Board.

On a May 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket under the Appeals Modernization Act (AMA). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual Board hearing on January 7, 2025. Therefore, the Board will consider the evidence of record at the time of the May 2020 and March 2021 rating decisions on appeal and any evidence submitted by the Veteran and the representative as of the day of the hearing and within 90 days following the hearing, which was April 7, 2025. 38 C.F.R. § 20.302(a).

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

Earlier Effective Dates and Increased Ratings, Generally

The Veteran is seeking an effective date prior to March 27, 2020 for the assignment of a 70 percent disability rating, as well as a higher evaluation, for his service-connected psychiatric disability. He also seeks effective dates prior to March 27, 2020 for the awards of a TDIU rating and DEA benefits under Chapter 35. Additionally, he contends that his service-connected bilateral hearing loss disability should be rated higher than 10 percent disabling.

Generally, the effective date of an award based on an initial claim of compensation is either the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, it will be the date of receipt of the claim or based upon facts found. 38 U.S.C. § 5110. The regulation provides that the effective date will be the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b). This includes original claims, a claim reopened after final disallowance, or a claim for increase (as described under the legacy appeal system) and initial or supplemental claims (as described under the AMA
than 10 percent disabling.

Additionally, VA may grant entitlement to compensation benefits from an effective date prior to the date the claim was received as long as a complete claim is received within one year of receipt of the intent to file. When the complete claim is received within one year of the intent to file, the effective date rules may be applied based on the intent to file. 38 C.F.R. § 3.155.

VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015.

As is pertinent to the Veteran's case, a claim adjudicated in a decision subject to the modernized review system (AMA) may be continuously pursued by timely filing an appropriate review request, which preserves the effective date of the claim. Continuous pursuit of a claim or an issue can be achieved by timely and properly filing an appropriate review option, generally within one year of an AMA decision. 38 C.F.R. § 3.2500(c). If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). In other words, in the case of continuously pursued claims, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options, including a Supplemental Claim, request for Higher Level of Review, or appeal to the Board, within one year of the issuance of the decision. 38 C.F.R. § 3.2500.

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997).

As discussed further below, the record shows that the Veteran filed a VA Form 21-526EZ, which was received by VA on May 13, 2019, seeking an increased rating for his psychiatric disability. Furthermore, the record shows that the Veteran filed a VA Form 21-8940,Veteran's Application for Increased Compensation Based on Unemployability on March 27, 2020, which the
an increase in disability had occurred, if the application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997).

As discussed further below, the record shows that the Veteran filed a VA Form 21-526EZ, which was received by VA on May 13, 2019, seeking an increased rating for his psychiatric disability. Furthermore, the record shows that the Veteran filed a VA Form 21-8940,Veteran's Application for Increased Compensation Based on Unemployability on March 27, 2020, which the AOJ construed as a claim for an increased rating for his bilateral hearing loss disability. Accordingly, the rating period on appeal begins on May 13, 2019 for the psychiatric disability and March 27, 2020 for the bilateral hearing loss disability, to include the one-year "look back period" that precedes the dates of the VA Form 21-526EZ and VA Form 21-8940. 38 C.F.R. § 3.400(o).

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

1. Entitlement to an effective date of May 13, 2019, but no earlier, for the award of a 70 percent disability rating, but no higher, for the psychiatric disability is granted; a total disability rating for the psychiatric disability is denied.

The Veteran seeks an effective date earlier than March 27, 2020 for the assignment of a 70 percent disability rating for his service-connected psychiatric disability, and he contends that this disability should be rated higher than the currently-assigned disability ratings. For example, he and his representative contended during the January 2025 Board hearing that an evaluation in excess of 50 percent should be assigned since May 13, 2019, as the Veteran has continuously pursued an increased rating claim for this disability since that time.

The Veteran's psychiatric disability is evaluated under 38 C.F.R. § 4.130 as 50 percent disabling prior to March 27, 2020, and as 70 percent disabling, thereafter, under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411.

The General Rating Formula is as follows:

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

A 70 percent rating is assigned 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 rating
difficulty in establishing and maintaining effective work and social relationships.

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

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DC. See id. VA must consider all symptoms of a veteran's disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the Veteran's symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See id.

Following a thorough review of the record, the Board finds that after resolving reasonable doubt in the Veteran's favor, he has continuously pursued a claim for an increased evaluation for the service-connected psychiatric disability since May 13, 2019. Moreover, after resolving reasonable doubt in the Veteran's favor, the signs and symptoms of his psychiatric disability have manifested with occupational and social impairment with deficiencies in most areas since May 13, 2019; however, the evidence persuasively weighs against finding that his psychiatric disability has manifested by total occupational and social impairment during the appeal. The reasons for the Board's decision follow.

The procedural history of the Veteran's case shows that he filed a VA Form 21-526EZ, which was received by VA on May 13, 2019, where he sought an increased rating for his service-connected disability as it had worsened in severity. The AOJ denied the Veteran's increase rating claim in a July 2019 rating decision. Thereafter, the Veteran filed a December 2019 VA Form 20-0996, Decision Review Request: Higher-Level Review, in which he sought a disability rating in excess of 50 percent for the service-connected psychiatric disability. In an April 2020 Higher Level of Review decision, the AOJ denied the increased rating claim.

The Veteran filed a VA Form 21-8940, which was received by VA on March 27, 2020, in which he sought a TDIU rating due to his service-connected psychiatric disability and bilateral hearing loss. In June 2020, the Veteran filed a VA Form 20-0995 seeking a higher disability rating for the service-connected psychiatric disability. In the March 2021 rating decision on appeal, the AOJ granted a 70 percent disability rating for this disability, effective March 27, 2020, which was the date of the VA Form 21-2940. However, as this procedural history shows, the Veteran continuously pursued the claim of entitlement for a higher evaluation for the psychiatric disability since May 13, 2019. Thus, the only question to be answered is whether entitlement to a disability rating in excess of 50 percent arose since that time.

In that regard, the Board notes that VA psychiatric treatment records from May
2020, the Veteran filed a VA Form 20-0995 seeking a higher disability rating for the service-connected psychiatric disability. In the March 2021 rating decision on appeal, the AOJ granted a 70 percent disability rating for this disability, effective March 27, 2020, which was the date of the VA Form 21-2940. However, as this procedural history shows, the Veteran continuously pursued the claim of entitlement for a higher evaluation for the psychiatric disability since May 13, 2019. Thus, the only question to be answered is whether entitlement to a disability rating in excess of 50 percent arose since that time.

In that regard, the Board notes that VA psychiatric treatment records from May 2018, June 2018, November 2018, January 2019, March 2019, and April 2019 document treatment for the Veteran's service-connected psychiatric disability, to include the use of medication. However, these VA treatment records do not document that a factually ascertainable increase in disability had occurred within the one year period immediately preceding the date of receipt of the May 13, 2019 claim for an increased rating. For example, while a June 2018 VA psychiatry note shows that the Veteran was using sertraline and hydroxyzine medication, and a March 2019 VA psychiatry individual note shows that he engaged in binge drinking of alcohol two weeks prior, the Veteran's signs and symptoms of his service-connected psychiatric disability did not manifest with occupational and social impairment with deficiencies in most areas, or worse, at those times.

Moreover, the mental status evaluations documented in the May 2018, June 2018, November 2018, January 2019, March 2019, and April 2019 VA treatment records document generally normal psychiatric symptoms. For example, the March 2019 VA treatment record shows that the Veteran was alert and awake. He was oriented in all spheres. He was clean and casually dressed. He made good eye contact. His speech was normal in tone, rate, and volume. His mood was talkative and friendly. His affect was congruent to mood. His thought process was linear. He denied having any suicidal or homicidal ideation, delusional thoughts, paranoia, or hallucinations. His concentration was good and his short- and long-term memory was intact. His insight was fair to good, but he did not understand the relationship between binge drinking and alcoholism. His judgement was good.

The Veteran filed an application for an increased rating for his service-connected psychiatric disability in May 2019.

The Veteran underwent a VA psychiatric examination in June 2019, during which the examiner diagnosed him with PTSD and alcohol use disorder, which was in early remission. The Veteran reported that he currently lived with his long-term girlfriend of 22 years and that they got along well. He stated that he had three adult sons and several grandchildren. He described his relationships with them as "great." He endorsed having supportive relationships with multiple other family members and friends.

In regard to his occupational and educational history, the Veteran stated that he retired from his career as a union-affiliated roofer at the age of 62 and he stated that he continued to do roofing jobs on occasion since that time. He stated that he did not have any additional education since his prior VA examination in December 2017. He also stated that he did not have psychiatric hospitalizations or psychiatric treatment outside of VA since the prior VA examination. The examiner noted that the Veteran was currently participating in in psychotropic medication management, with active prescriptions for mirtazapine, hydroxyzine, and sertraline, and individual psychotherapy at a VA Medical Center (VAMC). He reported that he was scheduled to begin group psychotherapy.

The Veteran denied any arrests, driving under the influence (DUIs), and/or physical altercations since his last VA examination in December 2017. He also denied any periods of aggressive behavior, such as punching walls, throwing or breaking objects, yelling, etc. He denied currently using alcohol or illegal drugs, and he stated that he had not consumed alcohol since May 2019. While he denied any history of problematic drug use, he described a problematic pattern of alcohol use that was characterized by long periods of sobriety followed by brief periods of continuous use of alcohol, i.e., binge drinking. He reported that he used alcohol to self-medicate his anxiety and depression. The examiner noted that the Veteran's VA treatment records included a diagnosis of alcohol abuse.

The examiner noted that the Veteran described his mood on most days as significantly depressed and easily upset with crying spells, as well as anxious and/or hypervigilant with panic attacks in the past, but none recently. The Veteran also endorsed continued difficulties with sleep, which were characterized by difficulties with initial
stated that he had not consumed alcohol since May 2019. While he denied any history of problematic drug use, he described a problematic pattern of alcohol use that was characterized by long periods of sobriety followed by brief periods of continuous use of alcohol, i.e., binge drinking. He reported that he used alcohol to self-medicate his anxiety and depression. The examiner noted that the Veteran's VA treatment records included a diagnosis of alcohol abuse.

The examiner noted that the Veteran described his mood on most days as significantly depressed and easily upset with crying spells, as well as anxious and/or hypervigilant with panic attacks in the past, but none recently. The Veteran also endorsed continued difficulties with sleep, which were characterized by difficulties with initial sleep onset, as well as trouble falling back asleep if he did wake up during the night. However, he denied significant difficulties with sleep maintenance and stated that he only woke up throughout the night on occasion. The Veteran stated that he "used to" experience nightmares, but had not experienced recurring nightmares recently. He described decreased energy throughout the day, but he did not report any significant difficulties with attention/concentration and/or appetite. The Veteran denied any current suicidal ideation, plan, and intent, as well as any history of suicide attempts. He did not report any current homicidal ideation, plan, and/or intent, as well as any current delusions and/or hallucinations.

The examiner determined that the Veteran's symptoms included a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting.

A mental status evaluation showed that the Veteran was on time for his appointment and attended the interview with his long-term girlfriend, who added/clarified information as needed. He was dressed in casual, weather appropriate attire, and had no notable deficits with grooming or hygiene. He was attentive and cooperative during the interview. His thought patterns and expressions were linear, relevant, and logical. The examiner reiterated that the Veteran described his mood on most days as significantly depressed and easily upset, to include crying spells. He stated that he was anxious/hypervigilant with panic attacks in the past, but none recently. His affect was full-ranging, consistent with reported mood, and appropriate to session content. The Veteran denied current suicidal or homicidal ideation, plan, and intent, as well as any history of suicide attempts. He did not report any current delusions and/or hallucinations. The examiner determined that the Veteran was not an imminent threat to himself or others at the time of the evaluation.

Following an in-person evaluation, as well as notation of the Veteran's history and self-reported symptoms, the examiner determined that the Veteran's psychiatric disability manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, which are criteria for a 30 percent disability rating. See 38 C.F.R. § 4.130, DC 9411.

In February 2020 written statements, the Veteran's brother, sister-in-law, and long-time friend, A. M. F., described their observations of the Veteran's alcohol use and depression throughout the years. They indicated that the Veteran's depression and alcoholism had impacted his work and family life. For example, A. M. F. asserted that the stress and trauma from the Veteran's time on active duty had caused him to struggle with alcoholism and depression, which affected everything in his life, to include his relationships with his family and the many jobs he had attempted to keep.

In a February 2020 psychiatric/psychological impairment questionnaire, Dr. D. J. G., who was the Veteran's clinical psychologist at a VA Clinic, diagnosed him with chronic PTSD, generalized anxiety disorder, and alcohol use disorder. The VA doctor noted that he had treated the Veteran once every one-to-two months since July 2016. This doctor determined that the Veteran's psychiatric symptoms manifested as deficiencies in work or school, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, suicidal ideation, and a history of multiple job losses due to alcohol and PTSD. After noting the functional impact of the Veteran's service-connected psychiatric disability on various activities and mental demands in a competitive work environment, the doctor stated that the Veteran had symptoms of withdrawal, extreme emotional reactions, and alcohol binges. The doctor listed the Veteran's current medications and opined that he would not be able to perform gainful employment due to his psychiatric disability symptoms.

As indicated above, the Veteran filed a VA Form 21-8940 in March 2020, in which he asserted that he was unable to secure or follow a substantially gainful occupation due to his service-connected psychiatric
in adapting to stressful circumstances, intrusive recollections of a traumatic experience, suicidal ideation, and a history of multiple job losses due to alcohol and PTSD. After noting the functional impact of the Veteran's service-connected psychiatric disability on various activities and mental demands in a competitive work environment, the doctor stated that the Veteran had symptoms of withdrawal, extreme emotional reactions, and alcohol binges. The doctor listed the Veteran's current medications and opined that he would not be able to perform gainful employment due to his psychiatric disability symptoms.

An October 2020 VA mental health note, which was authored by Dr. D. J. G., showed that the Veteran reported no alcohol use in the previous six months and that he was keeping up with other daily tasks to care for himself and his girlfriend. A mental status examination showed that he was oriented to person, time, place, and situation. He talked at length, but his speech was not pressured. He responded to questions and redirection. He was pleasant and had good long- and short-term memory. There was no homicidal or suicidal ideation. He did not have auditory or visual hallucinations, and he did not appear to be responding to internal stimuli. His stream of thought was linear and relevant, and his insight and judgment were good. The doctor diagnosed him with chronic PTSD and alcohol use disorder, which was in early remission.

The Veteran underwent another VA psychiatric examination in January 2021, during which the examiner diagnosed him with PTSD. The examiner noted that the Veteran had his own home and that his girlfriend, who was partially paralyzed, had lived with him for 20 years. He had three adult children. He provided for his girlfriend's needs and he stated that they had a stable relationship. He reported that he maintained contact with his family members and had a few friends, but he also reported that he seldom left his home. He reported that he was unemployed for the previous 14 years. He stated that his past employment primarily involved being in the roofing business where he fabricated and installed gutters. He stated that he was not involved in any educational programs or training since the previous examination.

In regard to his mental health history, he stated that his depression had worsened in recent months. He described himself as a binge drinker and stated that his most recent drinking binge ended in the prior week. The Veteran reported that suicidal ideation had been frequent in the past five months, but it had been of a passive nature, without plan or intent. He was currently in psychotherapy and was prescribed sertraline and mirtazapine medication. The examiner noted that the Veteran had not been psychiatrically hospitalized. The Veteran reported that he had not been charged with or convicted of any criminal offenses, and that he had not engaged in such behaviors as DUIs, violence, or compulsive gambling. He denied any illegal drug use, but stated that he was a binge drinker for quite some time, with binge episodes lasting approximately three weeks. He reported that his last binge ended the previous week.

The examiner documented that the Veteran's current symptoms included: depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and, suicidal ideation.

The VA examiner documented his behavioral observations of the Veteran, which showed that the Veteran was very talkative from the onset. He openly and thoroughly discussed his history and symptoms. The examiner noted that it was necessary to redirect the Veteran a few times into answering interview questions, but that his thinking and conversation were well-organized. The examiner noted that the Veteran became tearful for brief periods, but managed to maintain his poise otherwise. He exhibited adequate grooming and hygiene standards. His affect was appropriate to his thought content. The Veteran was well oriented to reality. The examiner remarked that the Veteran reported a worsening of his depression in recent months, along with increased suicidal ideation. The examiner reiterated that the Veteran stated that his suicide ideation was of a passive nature and did not include a plan or intent. The examiner noted that the Veteran's girlfriend and his brother were directly involved in monitoring his behaviors and ensuring that he was managing his life properly. The examiner determined that the Veteran was a low suicide risk at that time. The examiner noted that the Veteran talked about having a great deal of difficulty sleeping and a lack of motivation for accomplishing routine behaviors, such as taking care of household chores. The Veteran remarked that he did not trust people outside of his girlfriend and family. The Veteran also reported that he forgot to renew his license plates and that he forgot his siblings'
depression in recent months, along with increased suicidal ideation. The examiner reiterated that the Veteran stated that his suicide ideation was of a passive nature and did not include a plan or intent. The examiner noted that the Veteran's girlfriend and his brother were directly involved in monitoring his behaviors and ensuring that he was managing his life properly. The examiner determined that the Veteran was a low suicide risk at that time. The examiner noted that the Veteran talked about having a great deal of difficulty sleeping and a lack of motivation for accomplishing routine behaviors, such as taking care of household chores. The Veteran remarked that he did not trust people outside of his girlfriend and family. The Veteran also reported that he forgot to renew his license plates and that he forgot his siblings' birthdays. He talked about having a heightened anxiety level along with panic attacks that began occurring within the last three months.

Following an in-person examination, the examiner determined that the Veteran's psychiatric disability manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, which are criteria for a 70 percent disability rating. See 38 C.F.R. § 4.130, DC 9411.

The Board notes that during the January 2025 Board hearing, the Veteran testified that many of the symptoms that were documented during the February 2020 psychiatric evaluation and the January 2021 VA examination were present since 2019. For example, the Veteran reported that his symptoms of chronic sleep impairment, suicidal ideation, social withdrawal, and difficulty in adapting to stressful circumstances, to include in his everyday life, were present since 2019.

Given this evidence, and after resolving reasonable doubt in the Veteran's favor, his psychiatric disability signs and symptoms have manifested with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood since May 13, 2019. Specifically, the June 2019 and February 2020 VA psychiatric evaluations show that the Veteran experienced symptoms contemplated by the criteria for the 70 percent disability rating. For example, although the June 2019 VA examiner determined that the Veteran's psychiatric disability manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, this examiner also documented that the Veteran experienced difficulty in adapting to stressful circumstances, including work or a worklike setting, which is a symptom enumerated in the criteria for a 70 percent evaluation. The Board further notes that although the January 2021 VA examiner stated that the Veteran's symptoms had increased in severity in the previous months, such as frequent suicidal ideation in the past five months, the February 2020 VA psychiatric evaluation by Dr. D. J. G. shows that he experienced suicidal ideation prior to March 27, 2020, at which time a 70 percent evaluation was assigned. Moreover, the February 2020 lay statements by the Veteran's brother, sister-in-law, and A. M. F. show that the Veteran's signs and symptoms have manifested with occupational and social impairment with deficiencies in most areas. Additionally, the Veteran has credibly testified during the January 2025 Board hearing testimony that these symptoms have been present since 2019. Accordingly, resolving all reasonable doubt in the Veteran's favor, these signs and symptoms are contemplated by the criteria for a 70 percent disability rating since May 13, 2019. See 38 C.F.R. § 4.130, DC 9411.

However, the Board finds that the evidence persuasively weighs against finding that the Veteran's psychiatric disability has been manifested by total occupational and social impairment during the appeal. In that regard, the Board notes that the June 2019, February 2020, and January 2021 VA evaluations of the Veteran's psychiatric disability symptoms, as well as the overall record since May 13, 2019, do not show that the Veteran's psychiatric disability signs and symptoms have manifested with total occupational and social impairment. For example, the Veteran was able to attend the scheduled VA individual and/or group therapy sessions since 2018, as well as the June 2019, February 2020, and January 2021 psychiatric evaluations. The record shows that he generally engaged with medical professionals involved in his care during the appeal. The Board notes that the behavioral observations and mental status evaluations throughout the appeal, including in the VA psychiatric treatment records since 2018, as well as the June 2019 and January 2021 VA examinations, show no more than mild to moderate symptoms, within no evidence of homicidal ideations, delusions or hallucinations, or gross impairment in thought processes or communications. In fact, the June 2019 VA examiner concluded that the Veteran's signs and symptoms manifested
attend the scheduled VA individual and/or group therapy sessions since 2018, as well as the June 2019, February 2020, and January 2021 psychiatric evaluations. The record shows that he generally engaged with medical professionals involved in his care during the appeal. The Board notes that the behavioral observations and mental status evaluations throughout the appeal, including in the VA psychiatric treatment records since 2018, as well as the June 2019 and January 2021 VA examinations, show no more than mild to moderate symptoms, within no evidence of homicidal ideations, delusions or hallucinations, or gross impairment in thought processes or communications. In fact, the June 2019 VA examiner concluded that the Veteran's signs and symptoms manifested with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, while the January 2021 VA examiner concluded that his signs and symptoms manifested with occupational and social impairment with deficiencies in most areas. While the adjudicator (in this case the Board) makes the ultimate determination of what evaluation is warranted for the service-connected psychiatric disability, these medical professionals' conclusions that the Veteran's disability was best summarized by the criteria described under the 30 percent and 70 percent evaluations, respectively, is evidence against a finding that the Veteran's psychiatric disability caused total occupational and social impairment during the appeal. See id.

Overall, while the Board has considered the lay statements by the Veteran, his brother, his sister-in-law, and A. M. F., it determines that the evidence persuasively weighs against a disability rating in excess of 70 percent for the Veteran's psychiatric disability during the appeal. See id.

For the above reasons, and after resolving reasonable doubt in the Veteran's favor, a disability rating of 70 percent, but no higher, is warranted for the Veteran's psychiatric disability signs and symptoms since May 13, 2019, but no earlier. However, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a disability rating in excess of 70 percent for the psychiatric disability is warranted during the appeal. Rather, the evidence persuasively weighs against assigning a disability rating in excess of 70 percent since May 13, 2019. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

2. Entitlement to an effective date of May 13, 2019, but no earlier, for the award of a TDIU rating is granted.

The Veteran contends that he was unable to secure or follow substantially gainful employment due to his service-connected disabilities prior to March 27, 2020. For example, the Veteran asserted in the March 2020 VA Form 21-8940 that he last worked full time in November 2012 and that he became too disabled to work due to his service-connected PTSD and bilateral hearing loss in January 2016. The Veteran's representative asserted during the January 2025 Board hearing that the Veteran's claim for a TDIU rating is part and parcel of the increased rating claim for the service-connected psychiatric disability. Thus, the appeal for a TDIU rating stems since May 13, 2019. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

As a general matter, TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

The Board notes that the Veteran met the schedular criteria for consideration of entitlement to a TDIU rating prior to March 27, 2020. Specifically, given the Board's decision above, the Veteran's combined disability rating of his service service-connected disabilities, including the psychiatric disability and bilateral hearing loss, was 70 percent or higher since May 13, 2019. The record also shows that his service-connected psychiatric disability was rated 40 percent or more since May 13, 2019. See 38 C.F.R. § 4.16(a).

In determining whether a veteran can secure and follow a substantially gainful occupation
70 percent or more. 38 C.F.R. § 4.16(a).

In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).

Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

In reaching a determination of entitlement to a TDIU rating, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

After a thorough review of the record, and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities since May 13, 2019. The reasons for the Board's decision follow.

In the March 2020 VA Form 21-8940, the Veteran asserted that his service -connected PTSD and bilateral hearing loss disabilities prevented him from securing or following any substantially gainful occupation. He reported that he last worked as a part-time employee in January 2016, at which time, he became too disabled to work. He stated that he last worked as a full-time employee in November 2012. He reported that he worked in the roofing business for a company from 1972 to 1986 and that he worked 40 hours per week. He also reported working for a roofers union from 1986 to 1996 where he worked 30 to 40 hours per week. He stated that his last employment was between 2012 and 2016 with a construction company. The Board notes that this business was owned by the Veteran's brother. The Veteran stated that he worked part-time or 20 hours per week in construction. He stated that the most he ever earned in one year was in 2012 when he earned $16,000 as a roofer and tinner. He reported that he finished two years of high school and that he did not have any additional education prior to or after becoming too disabled to work.

The Board notes that the Veteran also stated during the January 2025 Board hearing that he worked in roofing with a union until he was 62 years old. He testified that although he worked for his brother from 2012 to 2016, he would frequently quit or leave work because he would get aggravated or not get along with others at work due to his psychiatric symptoms. He reported that his brother would take him back as an employee after each incident.

The record contains evidence from the Veteran's brother discussing the Veteran's employment with the brother's company. For example, in a May 2020 written statement, the Veteran's brother stated that he was a handyman and performed small remodeling jobs in his spare time. He stated that the Veteran helped him every now and then with a job, but that the Veteran was not dependable.

In addition to this lay evidence, the claims file includes VA medical opinions from February 2020, January 2021, and March 2021, in which the medical professionals addressed whether the Veteran was able to secure or follow a substantially gainful occupation due to his service-connected disabilities. For example, in the February 2020 psychiatric evaluation, Dr. D. J. G. opined that the Veteran would not be able to perform gainful employment due to his psychiatric disability symptoms. Similarly, a January 2021 VA examiner determined that the Veteran's service-connected psychiatric disability would prevent him from working, while the March 2021 VA examiner determined that the Veteran's bilateral hearing loss disability would not restrict his work if he had proper hearing and/or adaptive devices. The Board notes that while the ultimate responsibility for making a TDIU determination is placed with the adjudicator, the Board finds this medical evidence persuasive that the Veteran has been unable to work as due to his service-connected disabilities, prior to March 27, 2020. See Geib, 733 F.3d at 1354.

Given this evidence, and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities since May 13, 2019, which is the date that he filed an increased rating claim for his service-connected psychiatric disability. In sum, given the Veteran's education, training, and skills, as well as his physical limitations due to the bilateral hearing loss disability and mental limitations due to the psychiatric disability on his ability to perform substantially gainful employment, the Board finds that entitlement to a TDIU rating is warranted since May 13, 2019.

However, the evidence persuasively weighs against finding that the Veteran filed a formal or informal claim for a TDIU rating prior to May 13, 2019. In fact, although the Veteran has been unemployed since 2016, the Veteran does not contend, and the evidence does not suggest, that an effective date earlier than May 13, 2019, is warranted for the award of a TDIU rating. See January 2025 Board Hearing Transcript.

Accordingly, the Board finds that entitlement to an effective date of May 13, 2019, but no earlier, for the award of a TDIU rating is granted
TDIU rating is warranted since May 13, 2019.

Accordingly, the Board finds that entitlement to an effective date of May 13, 2019, but no earlier, for the award of a TDIU rating is granted, subject to laws and regulations governing the payment of monetary benefits. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Entitlement to an effective date of May 13, 2019, but no earlier, for the award of eligibility to DEA benefits under chapter 35 is granted.

The Veteran contends that he met the basic eligibility requirements for DEA benefits under Chapter 35 prior to March 27, 2020. Specifically, the Veteran's representative asserted throughout the appeal, including during the January 2025 Board hearing, that the effective date for the award of a TDIU rating, as well as DEA benefits, should be May 13, 2019, which is the date that the Veteran filed a claim for an increased rating for his service-connected psychiatric disability. See Rice, 22 Vet. App. at 453-54.

For the purposes of DEA benefits, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable, and if he has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021(p). There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty. Id.

Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long-standing that are actually totally incapacitating will be regarded as permanently and totally disabling on the probability that permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. See 38 C.F.R. § 3.340(b). Once permanence is established, a veteran need not undergo further VA examination in order to retain his rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii).

The Board finds that following its decision above, and after resolving all doubt in the Veteran's favor, the Veteran had a permanent and total service-connected disability since May 13, 2019, at which time entitlement to a TDIU rating was assigned. Since eligibility for DEA benefits is predicated on a finding of permanent and total disability, given the Board's decision above, the effective date of such eligibility is May 13, 2019 in this case. The Veteran does not contend, and the evidence does not suggest, that an effective date earlier than May 13, 2019, is warranted for the award of DEA benefits under Chapter 35.

Accordingly, Board finds that entitlement to an effective date of May 13, 2019, but no earlier, for the award of eligibility to DEA benefits under Chapter 35 is granted, subject to laws and regulations governing the payment of monetary benefits. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

4. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is denied.

The Veteran contends that a disability rating in excess of 10 percent is warranted for his service-connected bilateral hearing loss disability. For example, he testified during the January 2025 Board hearing that he currently wore hearing aids. He stated that his hearing had gotten worse in the previous three years, i.e., since January 2023, and that he currently had his hearing aids turned up to the highest setting. He indicated that he had difficulty understanding or hearing others. He stated that other people have commented that the volume on his television was set to "loud."

Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 using a mechanical formula. Additionally, VA must analyze the functional effects caused by a hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Under DC 6100, disability ratings for service-connected hearing loss range from noncompensable to 100 percent and are determined by inserting numbers, which are assigned based on the results of audiometric evaluations, into Table VI. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Schedule establishes eleven auditory acuity levels that range from Level I (essentially normal hearing acuity) to Level XI (profound deafness). Id. The level of auditory acuity is based on the average puretone threshold (derived from the results of puretone audiometric tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second) and organic impairment of hearing acuity (measured by controlled speech discrimination tests). See 38 C.F.R. § 4.85, Table VI. The columns in Table VI represent nine categories of dB loss as measured by puretone threshold averages. The rows in Table VI represent nine categories of organic impairment of hearing acuity as measured by speech discrimination tests. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column that represents the relevant puretone threshold average with the row that represents the relevant speech discrimination test result. Id.

The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the row that corresponds to the numeric designation for the ear with better hearing acuity (as determined by Table VI) and the column that corresponds to the numeric designation level for the ear with the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See id.

The Veteran filed a VA Form 21-8940 on March 27, 2020, which the AOJ construed as a claim for an increased rating for all of his service-connected disabilities, including bilateral hearing loss..

He underwent a VA audiological examination in March 2021, during which an examiner used the Maryland CNC test. The audiogram results showed that the puretone thresholds, in dB, were as follows:

HERTZ

1000 2000 3000 4000 Average

RIGHT 50 50 50 65 54

LEFT 45 65 75 70 64

Speech discrimination tests revealed speech recognition ability of 94 percent in each ear. The Veteran reported that the functional impairment of his bilateral hearing loss on the ordinary conditions of daily life, including his ability to work, was that he had difficulty hearing the television, telephone, his partner, and others. He also had difficulty hearing in noise and he reported that he said "what" constantly. The examiner opined that with proper hearing and/or adaptive devices, the Veteran had no work restrictions due to his hearing loss or tinnitus.

Given this evidence, the Board finds that the evidence persuasively weighs against a disability rating in excess of 10 percent for bilateral hearing loss at any time during the appeal. The Board has considered the Veteran's statements and complaints, including his testimony during the January 2025 Board hearing, as well as the VA treatment records during the appeal; however, the Board determines that the evidence that shows the Veteran's speech discrimination findings using the Maryland CNC test and puretone threshold findings is the most probative evidence in evaluating the Veteran's bilateral hearing loss disability. See Martinak, 21 Vet. App. at 447.

As noted above, Table VI in 38 C.F.R. § 4.85 combines the puretone average and the speech recognition scores to produce a numeric designation for each ear, which is inserted into Table VII in 38 C.F.R. § 4.85 to determine the correct disability level. Because the right ear had a puretone average of 54 dB and a speech recognition score of 94 percent during the March 2021 VA audiological examination, it receives a designation of I. Likewise, because the left ear had a puretone average of 64 dB and a speech recognition score of 94 percent, it receives a designation of II. When the better ear has a Level I hearing acuity and the poorer ear has a Level II hearing acuity, a noncompensable (zero percent) disability rating is assigned under Table VII. See 38 C.F.R. § 4.85, DC 6100. This is evidence that persuasively weighs against a finding that a disability rating in excess of 10 percent is warranted during the appeal.

The impairment associated with the Veteran's disability, i.e., difficulty hearing in noisy environments and/or difficulty hearing the television, the telephone, or others, is contemplated by the rating criteria, which consider the average impairment resulting from a service-connected disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Absent audiometric and speech discrimination scores showing that the Veteran's bilateral hearing loss disability meets the Schedular criteria in excess of the disability rating already assigned, his reported functional impairment does not warrant a higher rating. See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is warranted. Rather, the evidence persuasively weighs against the claim for a higher evaluation. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776 (Fed. Cir. 2021).

5. Entitlement to service connection for obstructive sleep apnea is granted.

The Veteran contends that his obstructive sleep apnea is caused by his active duty and/or caused by his service-connected psychiatric disability. For example, he asserted throughout the appeal that he had chronic sleep impairment during active duty, and that his obstructive sleep apnea was caused or aggravated by his service-connected psychiatric disability, including as due to weight gain, which was caused by the psychiatric disability. Specifically, he and his representative testified during the January 2025 Board hearing that although he was not obese based on his height and weight measurements, he gained weight due to his service-connected PTSD and this weight gain caused his obstructive sleep apnea.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may also be established on a secondary basis if a disability is due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Spicer v. McDonough, 61 F.4th 1360, 1363 (Fed. Cir. 2023) (secondary service connection requires "but-for causation," which is "broader than proximate causation"). For secondary aggravation, compensation is "due for any incremental increase in disability-any additional impairment of earning capacity-in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase-regardless of its permanence." Ward v. Wilkie
connection may also be established on a secondary basis if a disability is due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Spicer v. McDonough, 61 F.4th 1360, 1363 (Fed. Cir. 2023) (secondary service connection requires "but-for causation," which is "broader than proximate causation"). For secondary aggravation, compensation is "due for any incremental increase in disability-any additional impairment of earning capacity-in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase-regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019).

Initially, the Board notes that it will not address the Veteran's claim for entitlement to service connection as directly related to his active duty further below as it can adjudicate his claim based on secondary service connection.

Regarding the existence of a present disability, the record shows that the Veteran has a current diagnosis of obstructive sleep apnea. For example, an August 2019 private polysomnography report shows that the Veteran was diagnosed with moderate obstructive sleep apnea and that a continuous positive airway pressure (CPAP) machine was prescribed at that time. Moreover, a November 2019 VA examination report shows that the Veteran was diagnosed with obstructive sleep apnea. Additionally, the AOJ determined in the May 2020 rating decision on appeal that the Veteran was diagnosed with obstructive sleep apnea based on the November 2019 VA examination report. Thus, the evidence establishes the presence of a current disability.

As noted above, the Veteran contends that his current obstructive sleep apnea is caused by his service-connected psychiatric disability, to include excessive weight gain that is due to this service-connected disability. In that regard, the record reflects that the Veteran's psychiatric disability was a service-connected disability at the time of the rating decision on appeal. See May 2020 Rating Decision-Code Sheet. Accordingly, this element of secondary service connection is met.

Regarding the nexus element, the Board notes that the claims file contains the medical opinions from a November 2019 VA examiner, as well as a February 2025 private medical opinion from Dr. G. S. In the November 2019 medical opinion, a VA examiner opined that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected psychiatric disability. She explained that the Veteran had a consistent history of being overweight and obese. She stated that during the November 2019 VA examination, his body mass index (BMI) was 33.1, which was classified as Class 1 obesity. She noted that it was known that health consequences of those who have obesity, compared to those with a normal or healthy weight, are at increased risk for health conditions, including sleep apnea and breathing problems. She further stated that it was known that in adults, the most common cause of obstructive sleep apnea was excess weight and obesity, which was associated with soft tissue of the mouth and throat. She explained that during sleep, when throat and tongue muscles were more relaxed, this soft tissue could cause the airway to become blocked. She stated that it was also known that whether obstructive sleep apnea caused PTSD, or vice versa, or whether this relationship represented a unique phenotype of sleep-disordered breathing remained a topic in need of continued exploration and was not proven. Therefore, she opined that the Veteran's sleep apnea was due to his long history of obesity. She stated that his PTSD did not cause his sleep apnea as this was not supported by the scientific evidence, nor was there any indication in his service treatment records that he had sleep apnea during active duty. She cited to a medical study to show that the factors that increased vulnerability for sleep apnea included age, male sex, and obesity. She concluded that the Veteran's sleep apnea was directly related to his obesity and that his obstructive sleep apnea was not caused by his PTSD.

In contrast, Dr. G. S. opined in a February 2025 private evaluation report that the Veteran's obstructive sleep apnea was secondary to his service-connected PTSD. Following a review of the pertinent records, including the November 2019 VA medical opinion, Dr. G. S. opined that it was at least as likely as not that the Veteran's obstructive sleep apnea was the result of, or worsened by, his service-connected PTSD. Dr. G. S. directly addressed the VA examiner's statements that the relationship of obstructive sleep apnea and PTSD was "a topic in need of continued exploration and is not proven," and he cited to peer-reviewed evidence that showed a strong correlation between PTSD and obstructive sleep apnea. He determined that these three medical studies and/or articles, which were associated with the Veteran's claims file in March 2025, provided sufficient correlation between PTSD and obstructive sleep apnea to dispute the assertion of the November 2019 VA examiner that the association between the two diagnoses was not proven.

Dr. G. S. further addressed the assertion that the Veteran's obesity was the primary cause of his obstructive sleep apnea, as opined by the November 2019 VA examiner. Specifically, he stated that the Veteran's BMI score during the August 2019 polysomnography test was 29.8, and that a BMI score below 30 was not categorized as obesity. Thus, the doctor opined that the Veteran's weight was less likely to be the major contributing factor in causing his obstructive sleep apnea. However, the doctor noted that after this sleep study, the Veteran was documented to have a BMI score of 33.1 in Novembe2019. The doctor cited to a medical journal article to show that PTSD increased the risk of obesity. The doctor stated that obesity was often seen as a result of obstructive sleep apnea due to reductions in exercise performance, reduction in metabolism, and other factors. Therefore, the doctor opined that it was at least as likely as not that these diagnoses contributed to the Veteran's obesity.

In this case, although the claims file contains the medical opinion of the November 2019 VA examiner that the Veteran's obstructive sleep apnea was less likely than not proximately due to his service-connect psychiatric disability, the Board finds that the evidence is at least in equipoise as to whether the Veteran's obstructive sleep apnea was caused by his service-connected psychiatric disability. Although there is some evidence against the claim, the Board finds that the February 2025 private medical opinion by Dr. G. S., in which the doctor opined that it was at least as likely as not that the Veteran's obstructive sleep apnea was the result of his service-connected PTSD, places the evidentiary record in relative equipoise. See Lynch, 21 F.4th at 781. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt rule," where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b).

The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for obstructive sleep apnea is warranted. See Lynch, 21 F.4th at 781; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").

ANTHONY C. SCIRÉ, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Hodzic, 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.

Analyze in VA Law Explorer