Case A26038793

Summary

The Veteran served in the United States Army from July 1980 to July 1984, with additional periods of active duty for training. The Veteran appeals decisions denying service connection for right and left foot disabilities, bilateral hearing loss, and diabetes mellitus. The Veteran also appeals the denial of an earlier effective date for a 20 percent rating for right knee arthritis with instability, and the dismissal of appeals for restoration of ratings for dry eye syndrome and pseudofolliculitis barbae (PFB). The Board found that new and relevant evidence was not received to warrant readjudication of the effective date for the right knee disability. The Board also found that the criteria for service connection for the right and left foot disabilities, and for an initial compensable rating for bilateral hearing loss, were not met. The Board dismissed the appeals for restoration of ratings for dry eye syndrome and PFB as moot, as the AOJ had already restored those ratings. The Board remanded claims for service connection for back, left knee, psychiatric, right hip, left hip, diabetes mellitus, obstructive sleep apnea, and migraine headaches, finding the VA medical opinions inadequate due to failure to address secondary causation or provide consistent rationale. The Board noted that the AOJ's failure to obtain adequate opinions constituted a pre-decisional duty-to-assist error.

Rationale

No new and relevant evidence received; 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501

Full Decision Text

Citation Nr: A26038793
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 250317-525931
DATE:  April 27, 2026

ORDER

New and relevant evidence having not been received, readjudication of the claim for an effective date prior to October 24, 2021, for a 20 percent rating for right knee arthritis with instability (right knee disability) is denied.

Entitlement to service connection for a right foot disability, to include as secondary to a service-connected right knee disability, is denied.

Entitlement to service connection for a left foot disability, to include as secondary to a service-connected right knee disability, is denied. 

Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied.

Entitlement to restoration of the 20 percent rating for dry eye syndrome effective December 1, 2022, is dismissed.

Entitlement to restoration of the 10 percent rating for pseudofolliculitis barbae (PFB) effective March 1, 2024, is dismissed. 

Entitlement to an effective date prior to January 30, 2021, for the grant of service connection for a bilateral hearing loss disability is denied. 

REMANDED

Entitlement to service connection for a back disability as secondary to a service-connected right knee disability is remanded. 

Entitlement to service connection for a left knee disability as secondary to a service-connected right knee disability is remanded.

Entitlement to service connection for a psychiatric disability as secondary to a service-connected right knee disability is remanded. 

Entitlement to service connection for a right hip disability as secondary to a service-connected right knee disability is remanded. 

Entitlement to service connection for a left hip disability as secondary to a service-connected right knee disability is remanded. 

Entitlement to service connection for diabetes mellitus, to include as secondary to a service-connected right knee disability, is remanded. 

Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to a service-connected right knee disability is remanded. 

Entitlement to service connection for migraine headaches as secondary to service-connected dry eye syndrome is remanded.

FINDINGS OF FACT

1. In a November 2021 rating decision, the agency of original jurisdiction (AOJ) increased the rating for the Veteran's right knee disability to 20 percent effective October 24, 2021; the effective date was based on the date the claim for an increased rating was received. 

2. Following the November 2021 rating decision, the Veteran filed a supplemental claim in which he sought readjudication of the issue of entitlement to an effective date prior to October 24, 2021, for a 20 percent rating for his right knee disability. 

3. Evidence received in connection with the supplemental claim does not tend to prove or disprove the claim of entitlement to an effective date prior to October 24, 2021, for a 20 percent rating for the Veteran's right knee disability.

4. The Veteran's right foot disabilities did not manifest during active service and there is no indication that his right foot disabilities are otherwise related to active service or a service-connected disability.

5. The Veteran's left foot disabilities did not manifest during active service and there is no indication that his right foot disabilities are otherwise related to active service or a service-connected disability.

6. The Veteran has demonstrated, at worst, Level I hearing acuity in both ears. 

7. The Veteran submitted a formal claim for a bilateral hearing loss disability on January 30, 2021. 

8. The Veteran and his attorney requested restoration of a 20 percent rating for dry eye syndrome and a 10 percent rating for PFB. 

9. In a September 2024 decision, the AOJ restored a 20 percent rating for dry eye syndrome and a 10 percent rating for PFB. 

10. The record contains no informal claim, formal claim, or any written intent to file a claim for service connection for a bilateral hearing loss disability prior to January 30, 2021. 

CONCLUSIONS OF LAW

1. New and relevant evidence has not been received to warrant readjudication of the claim of entitlement to an effective date prior to October 24, 2021, for a 20 percent rating for a right knee disability. 38 U.S.C. § 5108 (2024); 38 C.F.R. §§ 3.156(d), 3.2501 (2025).

2. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1131, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.310
30, 2021. 

CONCLUSIONS OF LAW

1. New and relevant evidence has not been received to warrant readjudication of the claim of entitlement to an effective date prior to October 24, 2021, for a 20 percent rating for a right knee disability. 38 U.S.C. § 5108 (2024); 38 C.F.R. §§ 3.156(d), 3.2501 (2025).

2. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1131, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2025).

3. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1131, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2025).

4. The criteria for an initial compensable rating for a bilateral hearing loss disability are not met. 38 U.S.C. § 1155 (2024); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2025).

5. The criteria for dismissal of the appeal of entitlement to restoration of a 20 percent rating for dry eye syndrome are met. 38 U.S.C. § 7105 (2024); 38 C.F.R. § 20.205 (2025).

6. The criteria for dismissal of the appeal of entitlement to restoration of a 10 percent rating for PFB are met. 38 U.S.C. § 7105 (2024); 38 C.F.R. § 20.205 (2025).

7. The criteria for an effective date prior to January 30, 2021, for the grant of service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 5107, 5110 (2024); 38 C.F.R. §§ 3.102, 3.400 (2025).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from July 1980 to July 1984. He had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Army Reserve. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2024 Higher-Level Review (HLR) decision, a November 2024 decision, and March 2025 decision, issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The September 2024 HLR decision was issued in response to the Veteran's HLR request of June 2023, December 2023, January 2024 rating decisions. 

In March 2025, the Veteran appealed to the Board by filing a VA Form 10182 and requested Direct Review of the September 2024 HLR decision, the November 2024 decision, and the March 2025 decision. Therefore, any evidence submitted after the June 2023, December 2023, January 2024, November 2024, and March 2025 rating decisions cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Any evidence submitted after those decisions cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

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

Regarding any claim remanded by the Board, any evidence the Board could not consider will be considered by the AOJ in the readjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). 

The Board notes that the claims for service connection for a back disability, right and left hip disabilities, a left knee disability, diabetes mellitus, OSA, migraine headaches, and a psychiatric disability were previously denied. In the March 2025 rating decision, the AOJ either explicitly or implicitly found that new and relevant evidence had
 decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Regarding any claim remanded by the Board, any evidence the Board could not consider will be considered by the AOJ in the readjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). 

The Board notes that the claims for service connection for a back disability, right and left hip disabilities, a left knee disability, diabetes mellitus, OSA, migraine headaches, and a psychiatric disability were previously denied. In the March 2025 rating decision, the AOJ either explicitly or implicitly found that new and relevant evidence had been submitted and readjudicated the claims on the merits. The Board is bound by the AOJ's favorable findings. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).

The Board also notes that the issues of entitlement to restoration of a 20 percent rating for dry eye syndrome and a 10 percent rating for PFB were originally characterized as claims for increased ratings. As explained below, review of the record indicates that those issues arose from decisions by the AOJ to reduce the ratings for dry eye syndrome and PFB. Thus, the Board has recharacterized the issues accordingly. 

Finally, the Board notes that on his March 2025 NOD, the Veteran also indicated that he disagreed with the effective dates assigned for dry eye syndrome and PFB in the September 2024 HLR decision. Review of that decision, however, indicates that no effective dates were assigned. Rather, the AOJ restored the original ratings in their entirety. Thus, those issues are not before the Board. 

Readjudication - Effective Date for Right Knee Disability 

On October 24, 2021, the Veteran filed a claim for an increased rating for his service-connected right knee disability. In a November 2021 rating decision, the AOJ increased the rating to 20 percent effective October 24, 2021. In February 2022, the Veteran filed a supplemental claim for an earlier effective date for the 20 percent rating. 

In a June 2023 rating decision, the AOJ found that the new evidence that had been submitted was not relevant and did not support a change in their prior decision. 

If a claimant disagrees with a prior VA decision, he or she may file a supplemental claim. If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. If not, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. 38 C.F.R. § 3.2501. "New" evidence is defined as evidence that was not previously part of the record before agency adjudicators; "relevant" evidence is defined as evidence that tends to prove or disprove a matter at issue in a claim. 38 C.F.R. § 3.2501(a).

Generally, the effective date of an evaluation and award of compensation based on a claim for increase is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

In this case, the effective date for the 20 percent rating was based on the date the claim for an increased rating was received. None of the evidence received since the November 2021 rating decision pertains to the date the claim. The Board notes that an earlier effective date might be warranted if evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period prior to the date of the claim. Thus, evidence pertaining to the severity of the Veteran's service-connected right knee during the one-year period prior to October 24, 2021, would be relevant to the effective date assigned. 

The Board notes that new evidence was received and associated with the claims file, including VA treatment records and private medical records; however, none of that evidence pertained to the severity of the Veteran's right knee disability during the one-year period prior to the date of the claim. Therefore, as the new evidence does not tend to prove or disprove the Veteran's claim, it is not relevant. 

Accordingly, since new and relevant evidence has not been submitted, readjudication of the claim of entitlement to an effective date prior to October 24
 Thus, evidence pertaining to the severity of the Veteran's service-connected right knee during the one-year period prior to October 24, 2021, would be relevant to the effective date assigned. 

The Board notes that new evidence was received and associated with the claims file, including VA treatment records and private medical records; however, none of that evidence pertained to the severity of the Veteran's right knee disability during the one-year period prior to the date of the claim. Therefore, as the new evidence does not tend to prove or disprove the Veteran's claim, it is not relevant. 

Accordingly, since new and relevant evidence has not been submitted, readjudication of the claim of entitlement to an effective date prior to October 24, 2021, for a 20 percent rating for a right knee disability is not warranted.

In his May 2024 HLR request, the Veteran's attorney argued that the effective date should be no later than January 30, 2021, the date which VA received an Intent to File (VA Form 21-0966). The Board notes, however, that the January 30, 2021, Intent to File was already of record at the time of the November 2021 rating decision. Therefore, it is not new evidence. The Veteran, however, is not without recourse. He may file a request for revision of the effective date assigned in the November 2021 rating decision based on clear and unmistakable error (CUE). That issue, however, is not currently before the Board. 

Service Connection - Right and Left Foot Disabilities

The Veteran maintains that his current foot disabilities began during active service. Alternatively, he asserts that his current foot disabilities were caused or are aggravated by his service-connected right knee disabilities. 

The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to the left foot. 

Regarding the right foot, an August 1982 service treatment record indicated that the Veteran complained of pain in his right knee and right foot. He stated that he had intermittent swelling and pain, usually at night or following exercise. On examination, there was no swelling or edema, no deformities, and normal range of motion. The assessment was "strain." He was instructed to use heat and aspirin and was given a short-term profile. Later that week, in August 1982, he reported that he had pain in his right foot and knee when walking excessively, running, and when he put steady pressure on it. He also reported swelling in his right foot. On examination, range of motion was within normal limits. There was no edema. There was pain noted on movement. The assessment was mild chondromalacia of the right knee. He was instructed to treat his symptoms with aspirin and return to duty. In October 1982, he complained of a seven-day history of right ankle pain. He stated that he had had problems with his right ankle off and on for five months. On examination, there was no swelling or discoloration. Pain increased when the foot was turned outward. The assessment was possible strain of the ankle. He was given a three-day profile to avoid running or excessive walking and instructed to treat his symptoms with asprin and return if the condition worsened. Later that week, in October 1982, he complained of pain in the right foot and knee. He reported having the pain for approximately two months. 

Reports of medical examinations conducted for the Army Reserve dated in June 1986, April 1990, November 1995, and May 2001 indicated that the Veteran's feet were normal. On the corresponding reports of medical history, he denied having or having had foot trouble. 

Post service, a September 2015 VA treatment record indicated that the Veteran complained of generalized foot pain. In February 2020, he complained of bilateral foot pain. X-rays revealed calcaneal spurs. He was provided orthotics for arch support. In January 2021, he presented to the podiatry clinic with complaints of painful fungal nails on both feet. He denied any other pedal complaints. The assessment was diabetes with neuropathy, pain bilaterally, and tinea unguium nails bilaterally. 

During an April 2021 VA examination, the Veteran reported that the onset of his foot problems was in the 1980s. He stated that he now had constant pain in the plantar aspect of both feet around the arches and heels. The diagnoses were bilateral flat foot (pes planus) and bilateral calcaneal (heel) spurs. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner noted that the Veteran's service treatment records were silent for his current bilateral foot disabilities (heel spurs and pes planus) and that the Veteran denied a history of foot trouble multiple
 neuropathy, pain bilaterally, and tinea unguium nails bilaterally. 

During an April 2021 VA examination, the Veteran reported that the onset of his foot problems was in the 1980s. He stated that he now had constant pain in the plantar aspect of both feet around the arches and heels. The diagnoses were bilateral flat foot (pes planus) and bilateral calcaneal (heel) spurs. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner noted that the Veteran's service treatment records were silent for his current bilateral foot disabilities (heel spurs and pes planus) and that the Veteran denied a history of foot trouble multiple times for over 10 years after service. The examiner also noted the reports of medical examinations for the Army Reserve dated in June 1986, April 1990, November 1995, and May 2001, which indicated that a physical examination of the feet was normal at those times. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. The examiner noted that review of orthopedic literature revealed no credible, peer reviewed studies that supported the contention that a right knee disability might induce pes planus and heel spurs. The examiner also indicated that there was no evidence of aggravation of the claimed condition. The VA examiner reviewed the claims file, discussed the relevant medical evidence, and provided rationale for their opinion. Therefore, the Board finds the opinion has significant probative weight. 

An October 2022 private treatment record indicated that the Veteran complained of constant pain in both feet. X-rays showed hammertoe deformities in both feet. The assessment was diabetic polyneuropathy; hammertoes of both feet; and pain in both feet. 

In December 2022, a VA examiner reviewed the claims file and opined that it was less likely that the Veteran had a diagnosis of a right or left foot disability that was incurred during service. The examiner noted that there was insufficient evidence to establish any continuity of symptoms, noting that on a May 2000 report of medical history, the Veteran explicitly denied having any foot issues. The VA examiner reviewed the claims file, discussed the relevant medical evidence, and provided rationale for their opinion. Therefore, the Board finds the opinion has significant probative weight. 

The report of a February 2024 VA examination indicated that the Veteran was diagnosed with bilateral flat foot (pes planus) and plantar fasciitis. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner indicated that she could not speculate that the Veteran developed the conditions related to pes planus or heel spurs during service as there were no objective findings indicating a diagnosis of those conditions during active duty. The Board notes that the opinion was apparently based on the examiner's inability to speculate without providing rationale for that inability. For this reason, the Board finds the opinion lacks probative weight. 

In October 2024, a VA examiner reviewed the claims file and noted the Veteran's statements that he began having pain in his feet in the 1980s. The examiner, however, opined that it was less likely than not that his currently diagnosed bilateral foot conditions, to include pes planus, bilateral calcaneal spur, and bilateral plantar fasciitis were incurred in or caused by active service. The examiner noted the service treatment records that documented right foot pain but noted that there were no symptoms specific to pes planus, plantar fasciitis, or a calcaneal spur. The examiner also noted that foot symptoms were not noted on multiple physical examinations following separation from active duty, to include in June 1986, April 1990, November 1995, May 2000, and May 2001. Therefore, the record was not indicative of a chronic left or right foot condition, pain, or treatment. The examiner noted that pes planus, plantar fasciitis, and calcaneal heel spurs were diagnosed many years following military separation and that there was a lack of objective evidence of a chronic foot condition that developed specifically during active service. The VA examiner reviewed the claims file, discussed the relevant medical evidence, and provided rationale for their opinion. Therefore, the Board finds the opinion has significant probative weight. 

In this case, the Board finds the weight of the evidence is against the claims. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to the left foot. Regarding the right foot, although the Veteran was treated for foot pain in 1982, there was no follow-up treatment in the years leading up to his discharge from active duty. Furthermore, the Veteran specifically denied having or having had foot trouble on reports of medical history for the
 there was a lack of objective evidence of a chronic foot condition that developed specifically during active service. The VA examiner reviewed the claims file, discussed the relevant medical evidence, and provided rationale for their opinion. Therefore, the Board finds the opinion has significant probative weight. 

In this case, the Board finds the weight of the evidence is against the claims. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to the left foot. Regarding the right foot, although the Veteran was treated for foot pain in 1982, there was no follow-up treatment in the years leading up to his discharge from active duty. Furthermore, the Veteran specifically denied having or having had foot trouble on reports of medical history for the Army Reserve in June 1986, April 1990, November 1995, May 2000, and May 2001, and the reports of medical examinations indicated that his feet were normal. This suggests that the right foot pain he had in 1982 was acute and transitory and did not result in chronic disability. Following service, the first indication of foot problems was in September 2015, many years following discharge from service. The Board notes that the passage of time between discharge from service and the initial documentation of a disability is another factor that tends to weigh against a claim for service connection. 

Furthermore, the April 2021, December 2022, and October 2024 VA examiners opined that the Veteran's current foot disabilities were not incurred in or caused by service. The April 2021 VA examiner also opined that the Veteran's foot disabilities were not caused or aggravated by his service-connected right knee disability. The examiners reviewed the claims file, considered the relevant medical evidence, and provided rationale for their opinions. Therefore, the Board finds their opinions significantly probative. Furthermore, there are no opinions to the contrary. 

The Board notes that VA and private treatment records also indicated that Veteran was also diagnosed with hammertoes and tinea unguium, which were not diagnosed by the VA examiners. Therefore, the VA examiners did not provide an opinion with respect to those conditions. However, there is no evidence that those conditions might be related to the Veteran's service. Therefore, remand for an additional VA medical opinion is not necessary. 

The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent the Veteran's statements conflict with the contemporaneous medical evidence, the Board does not find them credible. Furthermore, the ultimate question of etiology in this case extends beyond an immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses.

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claims and is not in approximate balance. Therefore, entitlement to service connection for a right or left foot disability is not warranted. 38 U.S.C. § 5107(b) (2024); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

?

Increased Rating - Hearing Loss

The Veteran maintains that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss disability

During a February 2021 VA audiology evaluation, audiometric testing results were as follows:

	1000	2000	3000	4000	Avg. Hz.

Right	30	40	40	45	39

Left	40	40	40	45	41

Speech recognition ability was measured at 96 percent in both ears. Using Table VI, the results of the February 2021 VA audiology evaluation equate to Level I in both ears. Using Table VII, those results warrant a 0 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100.

The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b).

The Board has carefully reviewed the remaining record during the appeal period but finds no other probative evidence of record showing that the Veteran's bilateral hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluation discussed above. In addition, there is no basis for
, 2000, 3000, and 4000 Hertz) is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b).

The Board has carefully reviewed the remaining record during the appeal period but finds no other probative evidence of record showing that the Veteran's bilateral hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluation discussed above. In addition, there is no basis for the assignment of staged ratings, as the criteria for a higher rating have not been met during the relevant time period. 

In addition, the Board has considered the evidence of record showing that the Veteran has difficulty hearing conversations. Although the Board finds his statements to be credible, it finds that those factors do not provide sufficient evidence on which to award a higher rating for bilateral hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

In this case, as explained above, the numeric designations correlate to no greater than a 0 percent disability rating. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Therefore, entitlement to an initial compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776.

Restoration - Dry Eye Syndrome

Historically, in a November 2019 decision, the Board granted a 20 percent rating for the Veteran's service-connected dry eye syndrome. In a January 2020 rating decision, the AOJ implemented the Board's decision and granted a 20 percent rating effective September 21, 2018. 

In a September 2022 rating decision, the AOJ reduced the rating for dry eye syndrome from 20 percent to 0 percent, effective December 1, 2022. 

In January 2023, the Veteran filed a supplemental claim. 

In a June 2023 decision, the AOJ found that new and relevant evidence had not been presented or secured, and continued a 0 percent rating effective December 1, 2022. 

In May 2024, the Veteran submitted a HLR request of the June 2023 decision. Specifically, the Veteran requested restoration of the 20 percent rating for dry eye syndrome. 

In the September 2024 HLR decision, the AOJ indicated that it was continuing a 20 percent rating for dry eye syndrome. The corresponding code sheet indicated that the 20 percent rating had been assigned since September 21, 2018, thus restoring the original 20 percent rating in its entirety, which was a full grant of the benefits requested. Therefore, there are no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claim, and it is dismissed. See 38 U.S.C. § 7105.

Restoration - PFB

Historically, in a July 2018 decision, the AOJ granted service connection and assigned an initial 10 percent rating for PFB effective May 21, 2018. 

In a December 2023 rating decision, the AOJ reduced the rating for PFB from 10 percent to 0 percent, effective March 1, 2024. 

In May 2024, the Veteran submitted a HLR request of the December 2023 decision. Specifically, the Veteran requested restoration of the 10 percent rating for PFB. 

In the September 2024 HLR decision, the AOJ indicated that it was continuing a 10 percent rating for PFB. The corresponding code sheet indicated that the 10 percent rating had been assigned since May 21, 2018, thus restoring the original 10 percent rating in its entirety, which was a full grant of the benefits requested. Therefore, there are no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claim, and it is dismissed. See 38 U.S.C. § 7105.

Effective Date - Hearing Loss

Review of the claims file indicates that the Veteran submitted a formal claim for service connection for a bilateral hearing loss disability on January 30, 2021. 

In a July 2021 rating decision, the AOJ denied service connection for a bilateral hearing loss
 code sheet indicated that the 10 percent rating had been assigned since May 21, 2018, thus restoring the original 10 percent rating in its entirety, which was a full grant of the benefits requested. Therefore, there are no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claim, and it is dismissed. See 38 U.S.C. § 7105.

Effective Date - Hearing Loss

Review of the claims file indicates that the Veteran submitted a formal claim for service connection for a bilateral hearing loss disability on January 30, 2021. 

In a July 2021 rating decision, the AOJ denied service connection for a bilateral hearing loss disability. The Veteran continually pursued that claim and ultimately appealed to the Board. In a December 2023 decision, the Board granted service connection. In January 2024, the AOJ implemented that decision by granting service connection for a bilateral hearing loss disability. The AOJ assigned an effective date of January 30, 2021. The Veteran appealed and is requesting an earlier effective date. Neither the Veteran nor his representative has submitted any arguments regarding the effective date claim.

Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an initial claim or a supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

In this case, given the governing legal authority, the appropriate effective date is January 30, 2021, the date VA received the Veteran's formal claim. The Board has considered whether any evidence of record prior to January 30, 2021, could serve as an intent to file a claim in order to entitle the Veteran to an earlier effective date. However, there is no evidence of any oral or written intent to pursue a claim that was received by VA prior to January 30, 2021. 

The Board notes that to the extent that the Veteran may have had symptoms and sought medical treatment for the disability on appeal prior to January 30, 2021, the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006).

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Therefore, entitlement to an effective date prior to January 30, 2021, for the grant of service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776.

REASONS FOR REMAND

Service Connection - Back, Left Knee, and Psychiatric Disabilities

The Veteran maintains that his current back, left knee, and psychiatric disabilities were caused or aggravated by his service-connected right knee disability. 

VA examinations were conducted in September 2024, and the Veteran was diagnosed with lumbosacral strain, left knee tendinosis status post total knee replacement, and major depressive disorder. The examiners opined that the claimed conditions were less likely than not proximately due to or the result of the Veteran's service-connected right knee disability; however, the examiners did not provide an opinion as to whether the right knee disability aggravated his back, left knee, or psychiatric disabilities. Therefore, the Board finds the VA medical opinions inadequate. The AOJ's failure to obtain adequate VA medical opinions constituted a pre-decisional duty-to-assist error. Accordingly, the Board finds that a remand is necessary to correct that error. 38 C.F.R. § 20.802(a).

Service Connection - Right and Left Hip Disabilities

The Veteran maintains that his current right and left hip disabilities were caused or aggravated by his service-connected right knee disability. 

A February 2020 VA treatment record indicated that X-rays of the hips showed mild degenerative changes. An April 2021 VA examiner noted a diagnosis of degenerative arthritis of both hips.

A VA examination was conducted in September 2024. The report noted a diagnosis of bilateral hip strain, without addressing the prior diagnosis of degenerative arthritis. The VA examiner opined that the claimed hip disabilities were less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. As rationale, the examiner indicated that a right and left hip strain was not diagnosed, which directly contradicts the diagnosis section of that report
 that his current right and left hip disabilities were caused or aggravated by his service-connected right knee disability. 

A February 2020 VA treatment record indicated that X-rays of the hips showed mild degenerative changes. An April 2021 VA examiner noted a diagnosis of degenerative arthritis of both hips.

A VA examination was conducted in September 2024. The report noted a diagnosis of bilateral hip strain, without addressing the prior diagnosis of degenerative arthritis. The VA examiner opined that the claimed hip disabilities were less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. As rationale, the examiner indicated that a right and left hip strain was not diagnosed, which directly contradicts the diagnosis section of that report. For this reason, the Board finds the VA examination and medical opinion inadequate. The AOJ's failure to obtain an adequate VA examination and medical opinion constituted a pre-decisional duty-to-assist error. Accordingly, the Board finds that a remand is necessary to correct that error. 38 C.F.R. § 20.802(a).

Service Connection - Diabetes Mellitus

A VA examination was conducted in September 2024, and a diagnosis of diabetes mellitus was confirmed. The examiner, however, did not provide a medical opinion regarding the etiology of the Veteran's diabetes mellitus. The AOJ's failure to obtain an adequate VA medical opinion constituted a pre-decisional duty-to-assist error. Accordingly, the Board finds that a remand is necessary to correct that error. 38 C.F.R. § 20.802(a).

The Board also notes that in various statements, the Veteran asserted that his service-connected right knee disability caused him to gain weight, which negatively impacted his overall health. Therefore, the Board finds that the record reasonably raises the question of whether the Veteran's diabetes mellitus was caused or aggravated by his service-connected right knee disability with obesity as an intermediary step. Accordingly, a VA medical opinion is also needed to address that question. 

Service Connection - OSA

The Veteran maintains that his OSA was caused or aggravated by his service-connected right knee disability. Specifically, he asserts that his service-connected right knee disability caused him to gain weight, which caused or aggravated his OSA. 

A VA examination was conducted in September 2024. The VA examiner opined that the Veteran's right knee disability was less likely the cause for the Veteran's obesity, noting that his weight gain started prior to the diagnosis of right knee arthritis and instability. The examiner, however, did not address the question of whether the Veteran's right knee disability aggravated his weight gain. Therefore, the Board finds the medical opinion inadequate. The AOJ's failure to obtain an adequate VA medical opinion constituted a pre-decisional duty-to-assist error. Accordingly, the Board finds that a remand is necessary to correct that error. 38 C.F.R. § 20.802(a).

Service Connection - Migraine Headaches

The Veteran maintains that his migraine headaches were caused or aggravated by his service-connected dry eye syndrome. 

A VA examination was conducted in September 2024, and the Veteran was noted to have a diagnoses of migraine headaches, to include migraine variants. The examiner, however, did not provide a medical opinion regarding the etiology of the Veteran's migraine headaches. The AOJ's failure to obtain an adequate VA medical opinion constituted a pre-decisional duty-to-assist error. Accordingly, the Board finds that a remand is necessary to correct that error. 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

1. Obtain a medical opinion from an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed back disability. The claims file must be made available to and reviewed by the examiner.

Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's back disability was caused by, aggravated by, or would not have occurred but for the Veteran's service-connected right knee disability, to include any altered gait or change in body biomechanics. 

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

2. Obtain a medical opinion from an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed left knee disability. The claims file must be made available to and reviewed by the examiner.

Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left knee disability was caused by, aggravated by, or would not have occurred
 disability, to include any altered gait or change in body biomechanics. 

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

2. Obtain a medical opinion from an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed left knee disability. The claims file must be made available to and reviewed by the examiner.

Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left knee disability was caused by, aggravated by, or would not have occurred but for the Veteran's service-connected right knee disability, to include any altered gait or change in body biomechanics. 

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

3. Obtain a medical opinion from an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed psychiatric disability. The claims file must be made available to and reviewed by the examiner.

Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's psychiatric disability was caused by, aggravated by, or would not have occurred but for the Veteran's service-connected right knee disability. 

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

4. Schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed right and left hip disabilities. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed.

After examining the Veteran and considering the pertinent medical history and lay statements regarding reported symptoms, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently present right or left hip disability was caused by, aggravated by, or would not have occurred but for the Veteran's service-connected right knee disability, to include any altered gait or change body biomechanics. 

A rationale for all opinions expressed must be provided.

5. Obtain a medical opinion from an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed diabetes mellitus. The claims file must be made available to and reviewed by the examiner.

Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently present diabetes mellitus was incurred in or is etiologically related to the Veteran's service. 

The examiner should also provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any weight gain/obesity was caused by, aggravated by, or would not have occurred but for the Veteran's service-connected right knee disability, to include any medications used to treat that disability. 

If so, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), that the claimed diabetes mellitus was caused by, aggravated by, or would not have occurred but for the weight gain/obesity.

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

6. Obtain a medical opinion from an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed OSA. The claims file must be made available to and reviewed by the examiner.

Based on a review of the record, the examiner should also provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any weight gain/obesity was caused by, aggravated by, or would not have occurred but for the Veteran's service-connected right knee disability, to include any medications used to treat that disability. 

If so, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), that the claimed OSA was caused by, aggravated by, or would not have occurred but for the weight gain/obesity.

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

7. Obtain a
 at least approximately balanced or nearly equal, if not higher) that any weight gain/obesity was caused by, aggravated by, or would not have occurred but for the Veteran's service-connected right knee disability, to include any medications used to treat that disability. 

If so, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), that the claimed OSA was caused by, aggravated by, or would not have occurred but for the weight gain/obesity.

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

7. Obtain a medical opinion from an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed migraine headaches. The claims file must be made available to and reviewed by the examiner.

Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's migraine headaches were caused by, aggravated by, or would not have occurred but for the Veteran's service-connected dry eye syndrome. 

A rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion.

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Mishalanie, 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.