Back to BVA DecisionsMIXEDSpecial Benefit TDIU Docket No. 210714-172229
Case A26038873
M. DONOHUE · 2026 · Case ID: A26038873
Summary
The Veteran served from July 1976 to October 1976. The Veteran sought readjudication of claims for bilateral pes planus, bilateral knees, a low back disorder, migraines, coronary artery disease, hypertension, an acquired psychiatric disorder, and obstructive sleep apnea, all of which were previously denied. The Veteran also appealed the denial of service connection for vertigo and sought an increased rating for tinnitus. The Board dismissed the claim for vertigo as withdrawn by the Veteran. The Board denied an increased rating for tinnitus, finding the current maximum schedular rating was appropriate. For the remaining conditions, the Board found that new and relevant evidence had been submitted, warranting readjudication. The Board remanded these claims for further development. Specifically, the Board found that private nexus opinions submitted in May 2025 were inadequate. The opinion linking the back, knee, hip, and ankle disorders to service, and these as secondary to the back disorder, incorrectly stated the Veteran had no significant post-service trauma, despite evidence of car accidents causing back pain. The opinion linking the psychiatric disorder to service, and migraines, sleep disorder, CAD, and hypertension as secondary to it, failed to address evidence suggesting the psychiatric symptoms originated in prison. VA treatment records indicated prison treatment for anxiety and sleep difficulties, and potential paranoid schizophrenia diagnosis. The Board noted that any evidence submitted after the AOJ decision and not considered by the Board could be submitted via a supplemental claim.
Full Decision Text
Citation Nr: A26038873 Decision Date: 04/27/26 Archive Date: 04/27/26 DOCKET NO. 210714-172229 DATE: April 27, 2026 ORDER Service connection for vertigo is dismissed. A rating in excess of 10 percent for service-connected tinnitus is denied. New and relevant evidence having been received, readjudication of the service connection claim for bilateral pes planus is warranted. New and relevant evidence having been received, readjudication of the service connection claim for a bilateral knee disorder is warranted. New and relevant evidence having been received, readjudication of the service connection claim for a lumbosacral degenerative disc disease claimed as a back injury (herein a low back disorder) is warranted. New and relevant evidence having been received, readjudication of the service connection claim for migraine headaches is warranted. New and relevant evidence having been received, readjudication of the service connection claim for coronary artery disease is warranted. New and relevant evidence having been received, readjudication of the service connection claim for hypertension is warranted. New and relevant evidence having been received, readjudication of the service connection claim for an acquired psychiatric disorder is warranted. New and relevant evidence having been received, readjudication of the service connection claim for obstructive sleep apnea is warranted. REMANDED The issue of entitlement to service connection for bilateral pes planus is remanded. The issue of entitlement to service connection for a bilateral knee disorder is remanded. The issue of entitlement to service connection for a low back disorder is remanded. The issue of entitlement to service connection for migraine headaches is remanded. The issue of entitlement to service connection for coronary artery disease is remanded. The issue of entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder is remanded. The issue of entitlement to service connection for obstructive sleep apnea is remanded. The issue of entitlement to service connection for a right hip disorder is remanded. The issue of entitlement to service connection for a left hip disorder is remanded. The issue of entitlement to service connection for a right ankle disorder is remanded. The issue of entitlement to service connection for a left ankle disorder is remanded. The issue of entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus is rated at the maximum schedular rating authorized under Diagnostic Code 6260. 2. During the February 2025 Board hearing, the Veteran withdrew his claim for service connection for vertigo. 3. New and relevant evidence regarding the service connection claims for bilateral pes planus, bilateral knees, a low back disorder, migraines, coronary artery disease, hypertension and a psychiatric disorder, and for obstructive sleep apnea, has been received following the respective May 2017 and June 2019 rating decisions denying the claims. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.87, Diagnostic Code 6260. 2. The criteria for dismissal of the issue of entitlement to service connection for vertigo have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for readjudicating the service connection claims for bilateral pes planus, bilateral knees, a low back disorder, migraines, coronary artery disease, hypertension, a psychiatric disorder, and obstructive sleep apnea have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020 the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claims pertaining to bilateral pes planus, bilateral knees, a low back disorder, migraines, coronary artery disease, hypertension and a psychiatric disorder, most recently addressed in a May 2017 rating decision, and for obstructive sleep apnea, most recently addressed in a June 2019 rating decision. In October 2020 the agency of original jurisdiction (AOJ) issued the supplemental 6. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020 the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claims pertaining to bilateral pes planus, bilateral knees, a low back disorder, migraines, coronary artery disease, hypertension and a psychiatric disorder, most recently addressed in a May 2017 rating decision, and for obstructive sleep apnea, most recently addressed in a June 2019 rating decision. In October 2020 the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal as well as any evidence submitted by at the hearing or within 90 days following the hearing. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected to appeal the issues listed above and requested a hearing before the Board and an opportunity to submit evidence. A Board hearing was held on February 5, 2025. Based on the Veteran's docket selection, the Board may only consider the evidence of record at the time of the October 2020 agency of decisions on appeal, as well as any evidence submitted by at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. However, regarding the remanded claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Service connection for vertigo is dismissed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). In the present case, during the February 2025 Board hearing, the Veteran testified that he wished to withdraw the issue of entitlement to service connection for vertigo. The hearing transcript reflects that the withdrawal was explicit, unambiguous, and done with full understanding of the consequences. Accordingly, the Veteran's appeal for said issue is withdrawn. A rating in excess of 10 percent for service-connected tinnitus is denied. The Veteran seeks a rating in excess of 10 percent for his tinnitus. Recurrent tinnitus is evaluated under Diagnostic Code 6260, which provides that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, in both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran has been assigned the maximum schedular rating available for tinnitus, which is assigned percent for his tinnitus. Recurrent tinnitus is evaluated under Diagnostic Code 6260, which provides that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, in both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran has been assigned the maximum schedular rating available for tinnitus, which is assigned regardless of the extent of the tinnitus and whether the ringing is one or both ears. Moreover, the Veteran has not identified any symptoms of his tinnitus that are not contemplated by the rating schedule, so extraschedular consideration has not been raised. As the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating or separate 10 percent disability rating for tinnitus of each ear are not warranted. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). New and relevant evidence having been received, readjudication of the service connection claim for bilateral pes planus is warranted. New and relevant evidence having been received, readjudication of the service connection claim for a bilateral knee disorder is warranted. New and relevant evidence having been received, readjudication of the service connection claim for a lumbosacral degenerative disc disease claimed as a back injury (herein a low back disorder) is warranted. New and relevant evidence having been received, readjudication of the service connection claim for migraine headaches is warranted. New and relevant evidence having been received, readjudication of the service connection claim for coronary artery disease is warranted. New and relevant evidence having been received, readjudication of the service connection claim for hypertension is warranted. New and relevant evidence having been received, readjudication of the service connection claim for an acquired psychiatric disorder is warranted. New and relevant evidence having been received, readjudication of the service connection claim for obstructive sleep apnea is warranted. Before VA will readjudicate a claim, new and relevant evidence must be presented or secured. 38 U.S.C. § 5108(a). By regulation, evidence is "new" if it was not previously part of the actual record before agency adjudicators and "relevant" if it tends to prove or disprove a matter at issue in a claim. 38 C.F.R. § 3.2501(a)(1). In the May 2017 and June 2019 rating decisions, the Veteran was denied service connection for his claims because the record failed to demonstrate, in pertinent part, that his claimed disorders were related to service. The Board finds that new evidence has been associated with the claims file following the May 2017 and June 2019 rating decisions that are relevant to his claims. Specifically, at the hearing, the Veteran testified as to why he believed his disorders were related to service, and in May 2025, he provided private nexus opinions. The Board finds this evidence is new, in that it was not of record at the time of the prior denial. Additionally, this evidence may prove or disprove the unestablished nexus of the previously denied service connection claims. As such, readjudication of the claims is warranted. REASONS FOR REMAND The issue of entitlement to service connection for bilateral pes planus is remanded. The issue of entitlement to service connection for a bilateral knee disorder is remanded. The issue of entitlement to service connection for a low back disorder is remanded. The issue of entitlement to service connection for migraine headaches is remanded. The issue of entitlement to service connection for coronary artery disease is remanded. The issue of entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder is remanded. The issue of entitlement to service connection for obstructive sleep apnea is remanded. The issue of entitlement to service connection for a right hip disorder is remanded. The issue of entitlement to service connection for a left hip disorder is remanded. The issue of entitlement to service connection for a right ankle disorder is remanded. The issue of entitlement to service connection for a left ankle disorder is remanded. issue of entitlement to service connection for migraine headaches is remanded. The issue of entitlement to service connection for coronary artery disease is remanded. The issue of entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder is remanded. The issue of entitlement to service connection for obstructive sleep apnea is remanded. The issue of entitlement to service connection for a right hip disorder is remanded. The issue of entitlement to service connection for a left hip disorder is remanded. The issue of entitlement to service connection for a right ankle disorder is remanded. The issue of entitlement to service connection for a left ankle disorder is remanded. As noted above, the Veteran submitted private nexus opinions in May 2025, linking his claimed disorders in service. However, the Board finds that these opinions are either inadequate or incomplete, and that additional development is needed. In this regard, the May 2025 opinion which linked the Veteran's back, knee, hip and ankle disorders to service/linked his knee, hip ankle and feet disorders as secondary to his back disorder, incorrectly stated that the Veteran had no significant post-service trauma, despite earlier in the document noting the Veteran's history of post-service motor vehicle accidents with an onset of back pain therefrom, and did not discuss this in the rationale provided. Indeed, VA treatment records document that in December 2015, the Veteran reported that he had suffered from back pain for the past three to four years due to a car accident, a March 2016 VA treatment note states that the Veteran reported his back pain was due to a previous car accident and that he reinjured it again in another car accident five years ago, and a February 2000 private treatment note states that the Veteran reported having low back pain for the past six years. The other May 2025 opinion, which linked the Veteran's psychiatric disorder to service, and linked his migraines, sleep disorder, CAD and hypertension as secondary to such, failed to address evidence suggesting that the Veteran's psychiatric symptoms had their onset in prison. In particular, a November 2016 VA treatment note reflects that the Veteran was given medication while in prison for his anxiety and sleep difficulties, and that he may have been diagnosed with paranoid schizophrenia while in prison. That note also documents that the Veteran received mental health treatment and therapy at Hillview Hospital from 1998 to 2003/2004 and took anger management courses there in 2013. Accordingly, the Board finds that the Veteran's medical records from his incarceration should be obtained, as well as those from Hillview Hospital. This is a pre-decisional duty-to-assist error. Additionally, the record reflects that the Veteran is in receipt of SSA disability benefits. See March 2016 VA treatment note. VA's duty to assist includes attempting to obtain adequately identified relevant Federal records, to include SSA records. See 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(3); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (discussing VA's duty to assist in regard to obtaining SSA records and stating that "[a]s long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records"). As these records may be relevant to his claim, such should be obtained on remand. This is a pre-decisional duty-to-assist error. The issue of entitlement to a total disability based upon individual unemployability (TDIU) is remanded. The Board acknowledges that the Veteran included a claim for TDIU on his July 2020 VA Form 21-526EZ Fully Developed Claim, on which he also sought an increased rating for his tinnitus. Therefore, the Board finds that a TDIU is reasonably raised by the record in connection with his increased rating claim for tinnitus. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, because a decision on the remanded issues could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Take appropriate action to obtain the Veteran's medical records pertaining to his mental health treatment from his incarceration, and from Hillview Hospital pertaining to mental health treatment and therapy, from 1998 to 2003/2004, and anger management from 2013. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's disability records from the Social Security Administration, including App. 447 (2009). However, because a decision on the remanded issues could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Take appropriate action to obtain the Veteran's medical records pertaining to his mental health treatment from his incarceration, and from Hillview Hospital pertaining to mental health treatment and therapy, from 1998 to 2003/2004, and anger management from 2013. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's disability records from the Social Security Administration, including copies of all decisions and any underlying medical evidence. Document all requests for information as well as all responses in the claims file. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.