HYPERTENSION

Summary

The Veteran, an Army Veteran who served from March 2006 to December 2009, appeals the denial of service connection for hypertension and a fatigue condition, as well as the denial of an earlier effective date for traumatic brain injury (TBI). The Veteran also sought readjudication for back pain, right hip pain, left hip pain, right knee pain, left knee pain, and sleep apnea, which were previously denied. The Board found new and relevant evidence submitted by the Veteran, including private medical opinions and treatment records, warranted readjudication for these previously denied conditions. The Board granted service connection for cervical spine degenerative arthritis (neck condition), back pain, right hip pain, left hip pain, right knee pain, left knee pain, sleep apnea, an acquired psychiatric disorder, bruxism, and vertigo. Service connection for hypertension and a fatigue condition were denied. The appeal for an earlier effective date for TBI was dismissed. The Board remanded the claim for an increased rating for TBI, as the Veteran had not received a VA examination for his TBI since April 2017, and the TDIU claim, due to its interrelation with the TBI rating and other granted conditions. The Board also granted an effective date of June 5, 2020, for service connection for right and left upper extremity carpal tunnel syndrome, with initial ratings of 30% and 20% respectively.

Full Decision Text

Citation Nr: A26039967
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210824-181769
DATE: April 29, 2026

ORDER

New and relevant evidence has not been received, and the claim for service connection for hypertension will not be readjudicated.

New and relevant evidence has been received, and the claim for service connection for back pain will be readjudicated.

New and relevant evidence has been received, and the claim for service connection for right hip pain will be readjudicated.

New and relevant evidence has been received, and the claim for service connection for left hip pain will be readjudicated.

New and relevant evidence has been received, and the claim for service connection for right knee pain will be readjudicated.

New and relevant evidence has been received, and the claim for service connection for left knee pain will be readjudicated.

New and relevant evidence has been received, and the claim for service connection for sleep apnea will be readjudicated.

Service connection for cervical spine degenerative arthritis (neck condition) is granted.

Service connection for back pain is granted.

Service connection for right hip pain is granted.

Service connection for left hip pain is granted.

Service connection for right knee pain is granted.

Service connection for left knee pain is granted.

Service connection for sleep apnea is granted.

Service connection for an acquired psychiatric disorder is granted.

Service connection for bruxism is granted.

Service connection for vertigo is granted.

Service connection for a fatigue condition is denied.

The appeal for an effective date prior to October 18, 2016, for the award of service connection for traumatic brain injury (TBI) with memory loss, dizziness, and subjective alteration of taste and smell, is dismissed.

An effective date of June 5, 2020, but no earlier, for the award of service connection for right upper extremity carpal tunnel syndrome is granted.

An effective date of June 5, 2020, but no earlier, for the award of service connection for left upper extremity carpal tunnel syndrome is granted.

An initial rating of 30 percent, but no greater, for right upper extremity carpal tunnel syndrome is granted.

An initial rating of 20 percent, but no greater, for left upper extremity carpal tunnel syndrome is granted.

REMANDED

A rating in excess of 10 percent for traumatic brain injury (TBI) with memory loss, dizziness, and subjective alteration of taste and smell is remanded.

A total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The September 2017 and February 2018 rating decisions are final.  Evidence received since the February 2018 rating decision denying service connection for hypertension does not tend to prove or disprove a matter at issue in the claim.

2. The July 2017 and February 2018 rating decisions are final.  Evidence received since the February 2018 rating decision includes medical treatment records noting an assessment for back pain, and a private medical opinion, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

3. The July 2017 and February 2018 rating decisions are final.  Evidence received since the February 2018 rating decision includes medical treatment records noting an assessment for right hip pain, and a private medical opinion, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

4. The July 2017 and February 2018 rating decisions are final.  Evidence received since the February 2018 rating decision includes medical treatment records noting an assessment for left hip pain, and a private medical opinion, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

5. The July 2017 and February 2018 rating decisions are final.  Evidence received since the February 2018 rating decision includes medical treatment records noting an assessment for right knee pain, and a private medical opinion, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

6. The July 2017 and February 2018 rating decisions are final.  Evidence received since the February 2018 rating decision includes medical treatment records noting an assessment for left knee pain, and a private medical opinion, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

7. The July 2017 and June 2018 rating decisions are final.  Evidence received since the June 2018 rating decision includes a private medical opinion concerning sleep apnea, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

8. By
 and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

6. The July 2017 and February 2018 rating decisions are final.  Evidence received since the February 2018 rating decision includes medical treatment records noting an assessment for left knee pain, and a private medical opinion, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

7. The July 2017 and June 2018 rating decisions are final.  Evidence received since the June 2018 rating decision includes a private medical opinion concerning sleep apnea, which is new and relevant evidence as it tends to prove or disprove a matter at issue in the claim.

8. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's neck condition is secondary to his service-connected left tibia stress fracture with left shin splint.

9. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's back pain is secondary to his service-connected left tibia stress fracture with left shin splint.

10. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's right hip pain is secondary to his service-connected left tibia stress fracture with left shin splint.

11. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's left hip pain is secondary to his service-connected left tibia stress fracture with left shin splint.

12. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's right knee pain is secondary to his service-connected left tibia stress fracture with left shin splint.

13. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's left knee pain is secondary to his service-connected left tibia stress fracture with left shin splint.

14. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's sleep apnea is secondary to his service-connected TBI, migraine headaches, and tinnitus.

15. By resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's acquired psychiatric disorder is secondary to his service-connected TBI.

16. The evidence of record persuasively favors the conclusion that it is at least as likely as not that the Veteran's bruxism is secondary to his service-connected TBI.  

17. The evidence of record persuasively favors the conclusion that it is at least as likely as not that the Veteran's vertigo is secondary to his service-connected TBI.  

18. The evidence of record persuasively favors the conclusion that the Veteran does not have a current fatigue condition such as CFS as contemplated by VA regulations.

19. The September 2017 rating decision granting the Veteran service connection for TBI with memory loss, dizziness, and subjective alteration of taste and smell, with a 10 percent rating effective October 18, 2016, is final.  The Veteran's appeal for an earlier effective date for the award of service connection for TBI is a freestanding earlier effective date claim.   

20. The July 2017, April 2018, June 2018, and August 2018 rating decisions are final.  The Veteran filed an intent to file on June 5, 2020, and within one year he submitted a claim for service connection for right upper extremity carpal tunnel syndrome on the appropriate supplemental claim form.

21. The July 2017, April 2018, June 2018, and August 2018 rating decisions are final.  The Veteran filed an intent to file on June 5, 2020, and within one year he submitted a claim for service connection for left upper extremity carpal tunnel syndrome on the appropriate supplemental claim form.

22. Over the course of the period on appeal, the Veteran's right upper extremity carpal tunnel syndrome manifested at its worst as moderate incomplete paralysis.

23. Over the course of the period on appeal, the Veteran's left upper extremity carpal tunnel syndrome manifested at its worst as moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria to readjudicate the previously denied claim for service connection for hypertension have not been met.  38 U.S.C. §§ 5108
 rating decisions are final.  The Veteran filed an intent to file on June 5, 2020, and within one year he submitted a claim for service connection for left upper extremity carpal tunnel syndrome on the appropriate supplemental claim form.

22. Over the course of the period on appeal, the Veteran's right upper extremity carpal tunnel syndrome manifested at its worst as moderate incomplete paralysis.

23. Over the course of the period on appeal, the Veteran's left upper extremity carpal tunnel syndrome manifested at its worst as moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria to readjudicate the previously denied claim for service connection for hypertension have not been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1).

2. The criteria to readjudicate the previously denied claim for service connection for back pain have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1).

3. The criteria to readjudicate the previously denied claim for service connection for right hip pain have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1).

4. The criteria to readjudicate the previously denied claim for service connection for left hip pain have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1).

5. The criteria to readjudicate the previously denied claim for service connection for right knee pain have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1).

6. The criteria to readjudicate the previously denied claim for service connection for left knee pain have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1).

7. The criteria to readjudicate the previously denied claim for service connection for sleep apnea have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501(a)(1).

8. The criteria for service connection for a neck condition have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

9. The criteria for service connection for back pain have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

10. The criteria for service connection for right hip pain have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

11. The criteria for service connection for left hip pain have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

12. The criteria for service connection for right knee pain have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

13. The criteria for service connection for left knee pain have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

14. The criteria for service connection for sleep apnea have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

15. The criteria for service connection for an acquired psychiatric disorder have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

16. The criteria for service connection for bruxism have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).    

17. The criteria for service connection for vertigo have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).    

18. The criteria for service connection
. § 1110; 38 C.F.R. § 3.310(a).  

15. The criteria for service connection for an acquired psychiatric disorder have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).  

16. The criteria for service connection for bruxism have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).    

17. The criteria for service connection for vertigo have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.310(a).    

18. The criteria for service connection for a fatigue condition have not been met.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310(a).    

19. The criteria for dismissal of the appeal for an effective date prior to October 18, 2016, for the award of service connection for traumatic brain injury (TBI) with memory loss, dizziness, and subjective alteration of taste and smell, have been met.  38 U.S.C. § 7105;38 C.F.R. §§ 20.201, 20.202, 20.203, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296 (2006).

20. The criteria for an effective date of June 5, 2020, but no earlier, for the award of service connection for right upper extremity carpal tunnel syndrome have been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.155, 3.160, 3.400, 3.2500, 3.2501.

21. The criteria for an effective date of June 5, 2020, but no earlier, for the award of service connection for left upper extremity carpal tunnel syndrome have been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.155, 3.160, 3.400, 3.2500, 3.2501.

22. The criteria for an initial rating of 30 percent, but no greater, for right upper extremity carpal tunnel syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8515. 

23. The criteria for an initial rating of 20 percent, but no greater, for left upper extremity carpal tunnel syndrome have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8515.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from March 2006 to December 2009.

The rating decisions on appeal were issued in October 2020, March 2021, and May 2021, constituting initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  

In July 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues of service connection for hypertension, back pain, right hip pain, left hip pain, right knee pain, left knee pain, and sleep apnea.  Service connection for back pain, right hip pain, left hip pain, right knee pain, and left knee pain were most recently addressed in a February 2018 rating decision, service connection for hypertension was most recently addressed in an April 2018 rating decision, and service connection for sleep apnea was most recently addressed in a September 2018 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.

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  The Veteran provided testimony at a January 2025 Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Board must first determine whether new and relevant evidence has been received to readjudicate the claims for
 addressed in an April 2018 rating decision, and service connection for sleep apnea was most recently addressed in a September 2018 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.

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  The Veteran provided testimony at a January 2025 Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Board must first determine whether new and relevant evidence has been received to readjudicate the claims for service connection for hypertension, back pain, right hip pain, left hip pain, right knee pain, left knee pain, and sleep apnea, based only on the evidence of record at the time of the October 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran, or his representative, at the January 2025 Board hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  

Regarding the issues of service connection for an acquired psychiatric disorder, an earlier effective date for the award of service connection for TBI, earlier effective dates for the awards of service connection for both right and left upper extremity carpal tunnel syndrome, initial increased ratings for both right and left upper extremity carpal tunnel syndrome, and an increased rating for TBI, the Board may only consider the evidence of record at the time of the October 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran, or his representative, at the January 2025 Board hearing or within 90 days following the hearing.  Id.   

Concerning the issues of service connection for bruxism, vertigo, a fatigue condition, and a TDIU, the Board may only consider the evidence of record at the time of the March 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran, or his representative, at the January 2025 Board hearing or within 90 days following the hearing.  Id.   

Pertaining to the issue of service connection for a neck condition, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran, or his representative, at the January 2025 Board hearing or within 90 days following the hearing.  Id.   

If evidence was submitted either (1) during the period after the AOJ issued the decisions 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 claim[s], 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, because the Board is remanding the claims for an increased rating for TBI and a TDIU, 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).

New and Relevant Evidence

Under the Legacy system in effect prior to February 19, 2019, a previously denied claim may not be reopened unless "new and material evidence" was submitted.  Effective February 19, 2019, the "new and relevant" standard under the AMA replaced the new and material standard under the Legacy appeal system.

Under the AMA, if a Veteran is dissatisfied with an AOJ decision, they may elect one of three administrative review options by timely filing the appropriate form.  38 C.F.R. § 3.2500.  The Veteran may file a Supplemental Claim under 38 C.F.R. § 3.2501, request a Higher-Level Review under 38 C.F.R. § 3.2601, or appeal to the Board under 38 C.F.R. § 20.2020.

If the Veteran files a Supplemental Claim, new and relevant evidence must be presented for the AOJ to readjudicate the claim, taking into consideration all of the evidence of record.  38 C
 system.

Under the AMA, if a Veteran is dissatisfied with an AOJ decision, they may elect one of three administrative review options by timely filing the appropriate form.  38 C.F.R. § 3.2500.  The Veteran may file a Supplemental Claim under 38 C.F.R. § 3.2501, request a Higher-Level Review under 38 C.F.R. § 3.2601, or appeal to the Board under 38 C.F.R. § 20.2020.

If the Veteran files a Supplemental Claim, new and relevant evidence must be presented for the AOJ to readjudicate the claim, taking into consideration all of the evidence of record.  38 C.F.R. §§ 3.156(d), 3.2501.  "New evidence" means evidence not previously part of the actual record before agency adjudicators.  "Relevant evidence" means information that tends to prove or disprove a matter at issue in a claim, and includes evidence that raises a theory of entitlement that was not previously addressed.  38 C.F.R. § 3.2501(a)(1).

1. New and Relevant Evidence and Readjudication of Service Connection for Hypertension

The Veteran initially filed a claim for service connection for hypertension in October 2016.  In a September 2017 rating decision, service connection for hypertension was denied.  The Veteran submitted an additional claim for service connection for hypertension in February 2018.  In an April 2018 rating decision, service connection for hypertension was denied.  The Veteran did not appeal either the September 2017 or the February 2018 rating decisions, and new and material evidence was not received within a year of the February 2018 rating decision.  Thus, both the September 2017 and February 2018 rating decisions became final.  See 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.104, 3.105(a), 3.156(a), 3.160(d), 19.20, 19.21, 19.22, 19.52.  In both the September 2017 and February 2018 rating decisions, the Veteran was denied service connection for hypertension because the evidence of record did not show the Veteran to have a current diagnosis for hypertension.   

In July 2020, the Veteran filed a supplemental claim for service connection for hypertension.  The Veteran did not submit any evidence with his supplemental claim.  Since the February 2018 rating decision, evidence in the form of medical treatment records were added to his file.  In an October 2020 rating decision, the AOJ determined that new and relevant evidence had not been submitted sufficient to readjudicate the Veteran's claim for service connection for hypertension.  The Veteran appealed the October 2020 rating decision.

At the time of the October 2020 rating decision, the Veteran's record contained his complete service treatment records (STRs), post-service medical treatment records, and VA examinations and medical opinions.  The Veteran did not submit any "new" and "relevant" evidence with his July 2020 supplemental claim.  The additional medical treatment records associated with his file following the final February 2018 rating decision and prior to the October 2020 rating decision, may have been considered "new," however, they did not contain any "relevant" evidence as they neither showed the Veteran to have a current diagnosis for hypertension, nor contained continuous elevated blood pressure readings suggesting hypertension.  It is noted that at the January 2025 Board hearing, neither the Veteran nor his representative provided any argument or evidence of a diagnosis for hypertension.  Rather, the Veteran's representative acknowledged the difficulty with meeting the diagnosis for hypertension in relation to service and indicated that they were not competent to speak on the matter of diagnosis.  

As such, the only evidence received since the final February 2018 rating decision is not new and relevant, as it does not tend to prove or disprove a matter at issue in the claim.

Accordingly, new and relevant evidence has not been received, and the claim for service connection for hypertension will not be readjudicated.       

2. New and Relevant Evidence and Readjudication of Service connection for Back Pain, Right Hip Pain, Left Hip Pain, Right Knee Pain, Left Knee Pain, and Sleep Apnea

The Veteran initially filed claims for service connection for back pain, bilateral hip pain, and bilateral knee pain in October 2016.  In a July 2017 rating decision, the Veteran was denied service connection for back pain, bilateral hip pain, and bilateral knee pain.  The Veteran submitted an additional claim for service connection for back pain, bilateral hip pain, and bilateral knee pain in December 2017.  He was denied service connection
 relevant evidence has not been received, and the claim for service connection for hypertension will not be readjudicated.       

2. New and Relevant Evidence and Readjudication of Service connection for Back Pain, Right Hip Pain, Left Hip Pain, Right Knee Pain, Left Knee Pain, and Sleep Apnea

The Veteran initially filed claims for service connection for back pain, bilateral hip pain, and bilateral knee pain in October 2016.  In a July 2017 rating decision, the Veteran was denied service connection for back pain, bilateral hip pain, and bilateral knee pain.  The Veteran submitted an additional claim for service connection for back pain, bilateral hip pain, and bilateral knee pain in December 2017.  He was denied service connection for back pain, bilateral hip pain, and bilateral knee pain in a February 2018 rating decision.  The Veteran did not appeal either the July 2017 or the February 2018 rating decisions, and new and material evidence was not received within a year of the February 2018 rating decision.  Thus, both the July 2017 and February 2018 rating decisions became final.  Id.  

The Veteran initially filed a claim for service connection for sleep apnea in October 2016.  In a July 2017 rating decision, the Veteran was denied service connection for sleep apnea.  The Veteran submitted an additional claim for service connection for sleep apnea in May 2018.  He was denied service connection for sleep apnea in a June 2018 rating decision.  The Veteran did appeal either the July 2017 or the June 2018 rating decisions, and new and material evidence was not received within a year of the June 2018 rating decision.  Thus, both the July 2017 and June 2018 rating decisions became final.  Id.   

In July 2020, the Veteran submitted a supplemental claim, in which he requested readjudication of the issues of service connection for back pain, bilateral hip pain, bilateral knee pain, and sleep apnea.  An October 2020 rating decision denied his request because the AOJ found that the Veteran had not submitted new and relevant evidence.  

Concerning the issues of service connection for back pain, bilateral hip pain, and bilateral knee pain, following the February 2018 rating decision, medical treatment records were associated with the Veteran's file showing assessments for back pain, bilateral hip pain, and bilateral knee pain.  Additionally, during an evidence submission window, the Veteran submitted a private medical opinion concerning service connection for back pain, bilateral hip pain, and bilateral knee pain.  The evidence is both new and relevant as it tends to prove or disprove a matter at issue in the claims.  Thus, the claims for service connection for back pain, bilateral hip pain, and bilateral knee pain will be readjudicated.  See 38 C.F.R. § 3.2501(a)(1).   

Concerning the issue of service connection for sleep apnea, during an evidence submission window, the Veteran submitted a private medical opinion, which is evidence that is both new and relevant as it tends to prove or disprove a matter at issue in the claim.  Thus, the claim for service connection for sleep apnea will be readjudicated.  Id.  

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service.  The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 
 or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service.  The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disability which is aggravated by a service-connected disability.  In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509 (1998).

1. Service Connection Neck Condition, Back Pain, Right Hip Pain, Left Hip Pain, Right Knee Pain, and Left Knee Pain

The Veteran seeks service connection for a neck condition, back pain, bilateral hip pain, and bilateral knee pain.  His record shows a diagnosis for cervical degenerative arthritis on VA examination, and his medical treatment records contain assessments for back pain, bilateral hip pain, and bilateral knee pain.  

In February 2025 during an evidence submission window, the Veteran submitted a private medical opinion in which an internal medicine doctor indicated a review of the Veteran's record as well as interviewing/examining the Veteran via telemedicine.  The doctor opined that it is at least as likely as not that the Veteran's neck, back, bilateral hips, and bilateral knee pain are a direct result of his service-connected left tibia fracture.  The doctor explained the significance of the Veteran's left tibia injury in service that resulted in crutch dependence for six months, in turn causing the Veteran to favor his left lower extremity and shift his weight to his right side.  It was noted that an abnormal gait and abnormal weight bearing places severe and constant stress on the lower extremities and spine and are clearly precipitant of chronic overuse injuries, pain, and degenerative arthritis.  Specifically, lower extremity injuries often lead to chronic lower extremity contralateral joint, knee, hip, and spine issues as a result of abnormal wear and tear.  The examiner stated that research clearly substantiates chronic pain and strains to contralateral sides and superior structures in such situations, and therefore, it is at least as likely as not that the Veteran's neck, back, bilateral hips, and bilateral knee pain are a direct result of his service-connected left tibia fracture.  The doctor also provided citations to medical and academic literature backing their findings.

Based upon the foregoing, service connection for a neck condition, back pain, bilateral hip pain, and bilateral knee pain, all as secondary to service-connected left tibia stress fracture with left shin splint, are granted.  The February 2025 private doctor provided a thoroughly rationalized positive nexus opinion with citations backing their findings, which offers great probative value.  While there are negative VA medical opinions of record concerning the Veteran's neck condition, his back pain, his bilateral hip pain, and his bilateral knee pain, the positive private medical opinion is at least in equipoise.  Thus, by resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's neck condition, back pain, bilateral hip pain, and bilateral knee pain, are secondary to his service-connected left tibia stress fracture with left shin splint.

Accordingly, service connection for a neck condition is granted, service connection for back pain is granted, service connection for bilateral hip pain is granted, and service connection for bilateral knee pain is granted.             

2. Service Connection Sleep Apnea

The Veteran seeks service connection for sleep apnea.  His records show a diagnosis for obstructive sleep apnea via sleep study in 2016.  

In February 2025 during an evidence submission window, the Veteran submitted a private medical opinion in which an internal medicine doctor indicated a review of the Veteran's record as well as interviewing/examining the
, back pain, bilateral hip pain, and bilateral knee pain, are secondary to his service-connected left tibia stress fracture with left shin splint.

Accordingly, service connection for a neck condition is granted, service connection for back pain is granted, service connection for bilateral hip pain is granted, and service connection for bilateral knee pain is granted.             

2. Service Connection Sleep Apnea

The Veteran seeks service connection for sleep apnea.  His records show a diagnosis for obstructive sleep apnea via sleep study in 2016.  

In February 2025 during an evidence submission window, the Veteran submitted a private medical opinion in which an internal medicine doctor indicated a review of the Veteran's record as well as interviewing/examining the Veteran via telemedicine.  The doctor opined that it is at least as likely as not that the Veteran's sleep apnea is a direct result of his service-connected TBI, migraine headaches, and tinnitus.  The doctor began by explaining that the development of obstructive sleep apnea is relatively common post TBI.  Sleep disturbances were noted to occur post-TBI in 30 to 70 percent of TBI patients, and sleep disturbances in and of themselves can also lead to obstructive sleep apnea.  The doctor provided further explanation regarding the link between sleep apnea and TBI with citations to medical and academic literature.  The doctor also explained that patients with migraines are at a significant risk for sleep disturbances including sleep apnea.  Additional explanations as well as citations to medical and academic literature were provided concerning the link between sleep apnea and migraines.  The doctor also explained the association between tinnitus and sleep disturbances, including sleep apnea.  It was noted that sleep disordered breathing is much more common and severe in patients with tinnitus.  The doctor provided further rationale regarding the link between sleep apnea and tinnitus as well as citations to medical and academic literature.  The doctor finished by stating that the conditions of TBI, migraine headaches, and tinnitus, are each known to independently cause obstructive sleep apnea.  Thus, the doctor opined that it is more likely than not that the Veteran's sleep apnea is the direct result of his service-connected TBI, migraine headaches, and tinnitus.

Based upon the foregoing, service connection for sleep apnea as secondary to service-connected TBI, migraine headaches, and tinnitus, is granted.  The February 2025 private doctor provided a thoroughly rationalized positive nexus opinion with citations backing their findings, which offers great probative value.  While there is a negative VA medical opinion of record concerning the Veteran's sleep apnea, the positive private medical opinion is at least in equipoise.  Thus, by resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's sleep apnea is secondary to his service-connected TBI, migraine headaches, and tinnitus.

Accordingly, service connection for sleep apnea is granted.         

3. Service Connection Acquired Psychiatric Disorder

The Veteran seeks service connection for an acquired psychiatric disorder.  On his most recent July 2020 supplemental claim, he indicated that he was seeking service connection for depression as secondary to his service-connected TBI.  The Veteran's record contains multiple diagnoses for psychiatric conditions, including adjustment disorder with mixed anxiety and depressed mood, unspecified depressive disorder, and major depressive disorder with anxious distress.  Thus, as the record reflects multiple diagnoses of psychiatric disorders, the Veteran's claim has been recharacterized as service connection for an acquired psychiatric disorder.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In February 2025 during an evidence submission window, the Veteran submitted a private psychiatric evaluation from a licensed psychologist who indicated they had reviewed the Veteran's file and had evaluated him via video teleconference.  The psychologist's evaluation included a recounting of the Veteran's history, pertinent, records, as well as findings of current symptomatology.  The psychologist found the Veteran to have a diagnosis for adjustment disorder with mixed anxiety and depressed mood.  The psychologist noted the Veteran's adjustment disorder with anxiety and depressed mood to be secondary to his service-connected TBI.  The psychologist explained that the Veteran presents with classic symptomatology related to adjustment disorder with mixed anxiety and depressed mood as secondary to TBI.  After the Veteran received an injury to his head in service, he began utilizing alcohol.  His extensive military medical records indicate that he was having difficulties psychologically.  After the military he had extensive treatment for the same difficulties.  Thus, the psychologist found the Veteran's acquired psychiatric disorder to be secondary to his TBI.

There is also a positive VA medical opinion of record from August 2020, in which the VA examiner found that it was at least as likely as not that the Veteran's major
 noted the Veteran's adjustment disorder with anxiety and depressed mood to be secondary to his service-connected TBI.  The psychologist explained that the Veteran presents with classic symptomatology related to adjustment disorder with mixed anxiety and depressed mood as secondary to TBI.  After the Veteran received an injury to his head in service, he began utilizing alcohol.  His extensive military medical records indicate that he was having difficulties psychologically.  After the military he had extensive treatment for the same difficulties.  Thus, the psychologist found the Veteran's acquired psychiatric disorder to be secondary to his TBI.

There is also a positive VA medical opinion of record from August 2020, in which the VA examiner found that it was at least as likely as not that the Veteran's major depressive disorder was incurred in or caused by his military service.  The examiner did not provide a rationale outside of noting that the Veteran had been treated for depression and anxiety as well as medical conditions such as TBI/concussion.

Based upon the foregoing, service connection for an acquired psychiatric disorder is warranted.  The February 2025 private psychologist provided a rationalized positive nexus opinion which is consistent with the Veteran's record offering great probative value.  While there are negative VA medical opinions of record concerning the Veteran's acquired psychiatric disorder, the positive private medical opinion is at least in equipoise.  In addition, even though the August 2020 VA medical opinion is lacking in rationale, it is nevertheless positive, which adds additional weight to the positive private medical opinion.  Thus, by resolving all reasonable doubt in favor of the Veteran, the evidence persuasively favors the conclusion that it is at least as likely as not that the Veteran's acquired psychiatric disorder is secondary to his service-connected TBI.

Accordingly, service connection for an acquired psychiatric disorder is granted.    

4. Service Connection Bruxism

The Veteran seeks service connection for bruxism.  On a February 2021 VA examination, the examiner noted the Veteran to have a diagnosis for nocturnal and diurnal bruxism secondary to stress.  The examiner also provided a positive nexus opinion, finding that it is at least as likely as not that the Veteran's nocturnal and diurnal bruxism was proximately due to or the result of his service-connected TBI.  The examiner explained that the Veteran's TBI has undoubtedly caused stress in his life, and that stress is the root cause of his bruxing behavior.  It was noted that stress is a medically accepted cause of both nocturnal and diurnal bruxism.  Thus, the examiner found that it is more likely than not that the Veteran's bruxism is secondary to his TBI.  

Based upon the foregoing, service connection for bruxism is warranted.  The February 2021 VA examiner provided a rationalized positive nexus opinion providing probative value.  Additionally, the examiner's opinion has not been contradicted by any evidence of record.  Thus, the evidence of record persuasively favors the conclusion that it is at least as likely as not that the Veteran's bruxism is secondary to his service-connected TBI.  

5. Service Connection Vertigo

The Veteran seeks service connection for vertigo.  On a February 2021 VA examination, the examiner indicated the Veteran to have a diagnosis for vertigo.  The examiner also provided a positive nexus opinion, finding that it is at least as likely as not that the Veteran's vertigo is proximately due to or the result of his service-connected TBI.  The examiner noted that the Veteran had suffered a TBI and that it had been linked to dizziness.  A diagnosis for vertigo had also been rendered upon examination, which was thought to be due to his TBI.  According to Fife, et al. (2015), "Vertigo, dizziness, and disequilibrium are common symptoms following concussion or mild traumatic brain injury.  Dizziness and vertigo may be the result of trauma to the peripheral vestibular system or the central nervous system, or, in some cases, may be due to anxiety, depression, or posttraumatic stress disorder."  Thus, the examiner found that it is at least as likely as not that the Veteran's vertigo is secondary to his TBI.

Based upon the foregoing, service connection for vertigo is warranted.  The February 2021 VA examiner provided a rationalized positive nexus opinion with citations to medical literature providing probative value.  Additionally, the examiner's opinion has not been contradicted by any evidence of record.  Thus, the evidence of record persuasively favors the conclusion that it is at least as likely as not that the Veteran's vertigo is secondary to his service-connected TBI.  

6. Service Connection Fatigue Condition

The Veteran seeks service connection for a fatigue condition.  At the January 2025 Board hearing, the Veteran's representative addressed his fatigue in
 is at least as likely as not that the Veteran's vertigo is secondary to his TBI.

Based upon the foregoing, service connection for vertigo is warranted.  The February 2021 VA examiner provided a rationalized positive nexus opinion with citations to medical literature providing probative value.  Additionally, the examiner's opinion has not been contradicted by any evidence of record.  Thus, the evidence of record persuasively favors the conclusion that it is at least as likely as not that the Veteran's vertigo is secondary to his service-connected TBI.  

6. Service Connection Fatigue Condition

The Veteran seeks service connection for a fatigue condition.  At the January 2025 Board hearing, the Veteran's representative addressed his fatigue in connection with his service-connected TBI.  His representative noted that the Veteran's March 2021 VA examination showed generalized fatigue and acknowledged that the accompanying medical opinion attributed the Veteran's symptoms of fatigue to his untreated sleep apnea.  When questioned about his untreated sleep apnea, the Veteran explained that he was unable to utilize his CPAP machine as he cannot remain asleep while wearing the mask.  The Veteran reported symptoms of fatigue, including mental and physical fatigue.

The Veteran's STRs do not contain any complaints, treatments, or diagnoses for any fatigue conditions.

His post-service medical treatment records contain some generalized complaints of fatigue, in particular noting daytime fatigue.  In connection with the reported fatigue, sleep apnea is typically noted.  However, his medical treatment records do not contain any diagnoses for a fatigue condition.  

The Veteran was provided a VA examination in February 2021, at which the examiner found that he did not have a diagnosis for chronic fatigue syndrome (CFS).  The Veteran relayed that his fatigue began in 2012 and that it had worsened since its onset.  Particularly, it had worsened over the past 60 days.  It was noted that he had not been utilizing his CPAP for his sleep apnea for the past three months.  The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's fatigue was secondary to his TBI.  The examiner explained that the Veteran did not have a diagnosis for CFS in reference to his claim for fatigue.  Rather, the examiner indicated that based upon the Veteran's description of his fatigue at the February 2021 examination, his fatigue is related to his untreated sleep apnea.

The Board acknowledges the Veteran's lay contentions.  He is considered competent to report the observable health effects he experiences.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  His assertions that he experienced symptoms are also credible.  However, the mere presence of symptoms of fatigue alone is not diagnostic of a fatigue condition such as CFS, and determining whether such symptomatology is diagnostic of CFS is a medically complex question which the Veteran lacks the medical training and expertise to answer.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Thus, to address the questions the Veteran lacked the medical expertise to answer, VA provided him with a VA examination in February 2021.  Unfortunately, the VA examiner found that the Veteran did not have a diagnosis for a fatigue condition such as CFS.  Rather, the examiner attributed the Veteran's fatigue to his untreated sleep apnea.  The examiner's opinion for why the Veteran does not have a diagnosis for a fatigue condition or CFS is well-supported, considered the Veteran's statements, and has not been contradicted or undermined by any competent evidence.  As such, it is afforded great weight.

Thus, service connection for a fatigue condition or CFS is not warranted as the evidence of record does not show that the Veteran has experienced a fatigue condition such as CFS during the appeal period for which compensation benefits can be granted.  

In order to be considered for service connection, a claimant must first have a current disability.  See 38 U.S.C. § 1110; Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018).  The term "disability" refers to a functional impairment that reduces earning capacity.  See Saunders, 886 F.3d at 1363.  To establish a disability, the claimant's symptoms must result in "the level of a functional impairment of earning capacity."  Id. at 1367-68 (noting that the policy underlying Veterans' compensation is to compensate Veterans whose ability to earn a living is impaired as a result of their military service).  Service connection cannot be granted for injuries or diseases that are acute and transitory in nature, and do not result in residual functional impairment, because
 Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018).  The term "disability" refers to a functional impairment that reduces earning capacity.  See Saunders, 886 F.3d at 1363.  To establish a disability, the claimant's symptoms must result in "the level of a functional impairment of earning capacity."  Id. at 1367-68 (noting that the policy underlying Veterans' compensation is to compensate Veterans whose ability to earn a living is impaired as a result of their military service).  Service connection cannot be granted for injuries or diseases that are acute and transitory in nature, and do not result in residual functional impairment, because such injuries or diseases by definition would not reduce earning capacity.   

Despite the Veteran's assertions of mental and physical fatigue, the evidence does not show that he has experienced any functional impairment specifically from a fatigue condition such as CFS that has reduced his earning capacity during the appeal period.  The Veteran's medical treatment records do not contain any diagnoses for a fatigue condition such as CFS.  Rather, in connection with his complaints of fatigue, his medical treatment records often note sleep apnea.  The February 2021 VA examiner did not find the Veteran to have a diagnosis for a fatigue condition such as CFS.  Rather, the examiner attributed the Veteran's fatigue symptomatology to his untreated sleep apnea, and the Veteran's claim for sleep apnea has been granted in this decision.     

Thus, the evidence persuasively favors the conclusion that the Veteran does not currently have a fatigue condition such as CFS as contemplated by VA regulations, and therefore, service connection for a fatigue condition such as CFS is denied.

Earlier Effective Date Service Connection

Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, 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.

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 under 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision, provided that any appeal to the United States Court of Appeals for Veterans Claims must be accepted as timely by that court.  38 C.F.R. § 3.2500(h)(1).  For supplemental claims received more than one year after the date on which the AOJ issues notice of a decision or the Board issued notice of a decision, the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim.  38 C.F.R. § 3.2500(h)(2).  

Under the AMA, all continuous pursuit options apply to challenge an effective date, including filing a supplemental claim with new and relevant evidence.  See Calhoun v. McDonough, 37 Vet. App. 96 (2024).

However, the fact that a claimant had previously submitted claim applications which had been denied, and were not continuously pursued, is not relevant to the assignment of an effective date based on his or her current application.  "Nothing in the statute indicates that an effective date can be set based upon an application that resulted in a final disallowance of the claim."  Wright v. Gober, 10 Vet. App. 343, 347 (1997).  "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  Sears v. Principi, 16 Vet. App. 244, 248 (2002).  For a Veteran to be awarded an effective date based on an earlier claim, he or she must show clear and unmistakable error (CUE) in the prior denial of the claim.  Flash v. Brown, 8 Vet. App. 332, 340 (1995); Rudd v. Nicholson, 20 Vet. App. 296, 299 -300 (2006).  Here, there are no pending CUE claims properly before the Board.

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.  79 Fed. Reg. 57660 (Sept
 date based on an earlier claim, he or she must show clear and unmistakable error (CUE) in the prior denial of the claim.  Flash v. Brown, 8 Vet. App. 332, 340 (1995); Rudd v. Nicholson, 20 Vet. App. 296, 299 -300 (2006).  Here, there are no pending CUE claims properly before the Board.

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.  79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.

Under the revised regulations, although informal claims are no longer recognized, a claimant may submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within one year of receipt of the intent to file a claim.  An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based.  VA considers an intent to file a claim to be submitted when an application that meets the previously stated requirements is electronically initiated and saved in a claims-submission tool within a VA web-based electronic claims application system prior to filing a completed claim.  38 C.F.R. § 3.155(b).

1. Earlier Effective Date Service Connection TBI

The Veteran seeks an effective date prior to October 18, 2016, for the award of service connection for TBI with memory loss, dizziness, and subjective alteration of taste and smell.  

By way of history, the Veteran filed an initial claim for service connection for TBI on October 18, 2016.  In a September 2017 rating decision, he was granted service connection for TBI with memory loss, dizziness, and subjective alteration of taste and smell, with a 10 percent rating effective October 18, 2016, the date of his initial claim.  The Veteran did not appeal the September 2017 rating decision, and it became final.  See 38 C.F.R. §§ 3.156(b), 3.160(d)(1), 3.2500(h)(2), 3.2501. 

The Veteran filed a supplemental claim on July 31, 2020, in which he noted loss of sense of taste and loss of sense of smell.  In the October 2020 rating decision, the AOJ acknowledged the symptoms for loss of sense of taste and loss of sense of smell as associated with the Veteran's service-connected TBI, and therefore, the AOJ adjudicated an issue for an increased rating for the Veteran's TBI.  In the October 2020 rating decision, the Veteran was denied a rating in excess of 10 percent for TBI.  The Veteran submitted a VA Form 10182 Board appeal in August 2021, in which he identified the October 2020 rating decision and indicated he was seeking an earlier effective date for the award of service connection for TBI.  Neither the Veteran nor his representative have presented any argument concerning what effective date they are seeking.  The Veteran's representative even acknowledged during the January 2025 Board hearing that they did not have any argument concerning the appeal for an earlier effective date for the award of service connection for TBI.

Here, the September 2017 rating decision granting the Veteran service connection for TBI with memory loss, dizziness, and subjective alteration of taste and smell, with a 10 percent rating effective October 18, 2016, is final.  Id.  There is no continuous pursuit in this case, as the Veteran did not file his supplemental claim, which the AOJ took as a claim for an increased rating for TBI, until July 2020.  The first mention of an earlier effective date for service connection for TBI is found on the Veteran's August 2021 VA Form 10182 Board appeal.  The August 2021 VA Form 10182 Board appeal was not timely to disagree with the effective date assigned in the September 2017 rating decision.  Additionally, neither the Veteran nor his representative have provided any argument concerning the appeal for an earlier effective date for service connection for TBI.  

In Rudd, the Court concluded that Veterans are prohibited from collaterally attacking a prior final decision by filing a freestanding earlier effective date claim.  The Court specifically held that, once a decision has become final,
 increased rating for TBI, until July 2020.  The first mention of an earlier effective date for service connection for TBI is found on the Veteran's August 2021 VA Form 10182 Board appeal.  The August 2021 VA Form 10182 Board appeal was not timely to disagree with the effective date assigned in the September 2017 rating decision.  Additionally, neither the Veteran nor his representative have provided any argument concerning the appeal for an earlier effective date for service connection for TBI.  

In Rudd, the Court concluded that Veterans are prohibited from collaterally attacking a prior final decision by filing a freestanding earlier effective date claim.  The Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim to overcome the finality of a decision.  The Court reasoned that to allow such claims would vitiate the rule of finality.  Rudd, 20 Vet. App. at 299-300. 

The only way that such a final rating decision, such as in this case, can be revised is if it contains CUE.  The Veteran has not argued or filed a claim for CUE in the September 2017 rating decision granting service connection for TBI with a 10 percent rating effective October 18, 2016, and an issue for CUE in the September 2017 rating decision is not before the Board for adjudication and will not be further addressed.

Thus, if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed.  The Veteran's appeal for an earlier effective date for service connection for TBI is a freestanding earlier effective date claim.  Consequently, the Board cannot adjudicate the Veteran's appeal for an earlier effective date for service connection for TBI without violating the Court's express prohibition in Rudd against freestanding earlier effective date claims.  Id.  

Accordingly, the Veteran's claim for an earlier effective date for service connection for TBI must be dismissed as a matter of law.    

2. Earlier Effective Date Service Connection Right and Left Upper Extremity Carpal Tunnel Syndrome

The Veteran seeks an effective date prior to July 31, 2020, for the award of service connection for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome.  

By way of history, the Veteran filed an initial claim for service connection for a bilateral wrist condition in October 2016.  He was denied service connection for bilateral carpal tunnel in a July 2017 rating decision.  He filed an additional claim for service connection for bilateral carpal tunnel in February 2018.  He was denied service connection for bilateral carpal tunnel in an April 2018 rating decision.  He again filed a claim for service connection for bilateral carpal tunnel in May 2018.  He was denied service connection for bilateral carpal tunnel in a June 2018 rating decision.  The Veteran filed a claim for service connection for bilateral carpal tunnel in August 2018.  He was denied service connection for bilateral carpal tunnel syndrome in a September 2018 rating decision.  The Veteran did not appeal either the July 2017, April 2018, June 2018, or August 2018 rating decisions, and they all became final.  See 38 C.F.R. §§ 3.156(b), 3.160(d)(1), 3.2500(h)(2), 3.2501. 

The Veteran filed an intent to file on June 5, 2020.  He filed an additional intent to file on July 8, 2020.  He filed a supplemental claim on July 31, 2020, in which he requested readjudication of his claim for service connection for bilateral carpal tunnel.  In an October 2020 rating decision, the Veteran was granted service connection for bilateral carpal tunnel syndrome with 10 percent ratings for both the right and left upper extremity effective July 31, 2020.  He submitted a VA Form 10182 Board appeal in August 2021, in which he indicated he was seeking an earlier effective date for the award of service connection for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome.  Neither the Veteran nor his representative have presented any argument concerning what effective date they are seeking.  The Veteran's representative even acknowledged during the January 2025 Board hearing that they did not have any argument concerning the appeal for an earlier effective date for the award of service connection of both right upper extremity carpal tunnel and left upper extremity carpal tunnel.

As noted above, the effective date assigned for service connection in this case is the date the
, 2020.  He submitted a VA Form 10182 Board appeal in August 2021, in which he indicated he was seeking an earlier effective date for the award of service connection for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome.  Neither the Veteran nor his representative have presented any argument concerning what effective date they are seeking.  The Veteran's representative even acknowledged during the January 2025 Board hearing that they did not have any argument concerning the appeal for an earlier effective date for the award of service connection of both right upper extremity carpal tunnel and left upper extremity carpal tunnel.

As noted above, the effective date assigned for service connection in this case is the date the Veteran filed his supplemental claim, that is July 31, 2020.  The prior July 2017, April 2018, June 2018, and August 2018 rating decisions are final.  The Veteran has not argued or filed a claim for CUE in either the July 2017, April 2018, June 2018, or August 2018 rating decisions denying service connection for bilateral carpal tunnel syndrome, and an issue for CUE in either the July 2017, April 2018, June 2018, or August 2018 rating decisions is not before the Board for adjudication and will not be further addressed.

Prior to the Veteran's filing of his July 31, 2020, supplemental claim, VA received two intents to file from the Veteran, one on June 5, 2020, and one on July 8, 2020.  No other claims have been specifically associated with either intent to file, and the only other claim received following both intents to file was also received on July 31, 2020.  As such, as the Veteran's claim for bilateral carpal tunnel syndrome was received on the appropriate form, the supplemental claim form, within one year of the June 5, 2020, intent to file, his supplemental claim will be considered to have been filed as of June 5, 2020, the date the first intent to file was received.  

The Veteran's VA treatment records show a diagnosis for carpal tunnel via EMG - NCS from August 2016.  Thus, the date entitlement arose for the Veteran's bilateral carpal tunnel syndrome is August 2016.

As such, June 5, 2020, the date VA received the Veteran's intent to file is later than the date entitlement arose for the Veteran's carpal tunnel in August 2016.  Hence, the appropriate effective date for the award of service connection for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome is June 5, 2020.

To the extent an effective date earlier that June 5, 2020, is sought, as previously indicated the July 2017, April 2018, June 2018, and August 2018 rating decisions are final.  A thorough review of the Veteran's file prior to the June 5, 2020, intent to file, does not show any evidence of the Veteran filing any claims for service connection for bilateral upper extremity carpal tunnel syndrome that were not final, to include any informal claims.  As such, June 5, 2020, and no earlier, is the earliest possible effective date for the award of service connection for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome.

Accordingly, an effective date of June 5, 2020, but no earlier, for the awards of service connection for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome is granted.        

Initial Increased Rating

1. Initial Increased Rating Right and Left Upper Extremity Carpal Tunnel Syndrome

As noted above, the Veteran filed an intent to file on June 5, 2020, which he followed up with a supplemental claim on July 31, 2020, requesting readjudication of his claim for service connection for bilateral carpal tunnel.  In an October 2020 rating decision, the Veteran was granted service connection for bilateral carpal tunnel syndrome with 10 percent ratings for both the right and left upper extremity effective July 31, 2020.  He submitted a VA Form 10182 Board appeal in August 2021, in which he indicated he was seeking increased ratings for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome.  Thus, the issues before the Board for adjudication are an initial rating in excess of 10 percent for right upper extremity carpal tunnel syndrome and an initial rating in excess of 10 percent for left upper extremity carpal tunnel syndrome.

At the January 
 bilateral carpal tunnel.  In an October 2020 rating decision, the Veteran was granted service connection for bilateral carpal tunnel syndrome with 10 percent ratings for both the right and left upper extremity effective July 31, 2020.  He submitted a VA Form 10182 Board appeal in August 2021, in which he indicated he was seeking increased ratings for both right upper extremity carpal tunnel syndrome and left upper extremity carpal tunnel syndrome.  Thus, the issues before the Board for adjudication are an initial rating in excess of 10 percent for right upper extremity carpal tunnel syndrome and an initial rating in excess of 10 percent for left upper extremity carpal tunnel syndrome.

At the January 2025 Board hearing, the Veteran's representative argued that based upon the October 2020 VA examination a 30 percent rating was warranted for the Veteran's right upper extremity carpal tunnel and a 20 percent rating was warranted for his left upper extremity carpal tunnel.  The Veteran reported symptoms of tingling and numbness with both his right and left upper extremity.  He also noted that due to his tingling and numbness he ends up dropping things.

The Veteran's right and left upper extremity carpal tunnel syndrome is rated under DC 8515, which evaluates paralysis of the median nerve.  Ratings depend upon whether the impairment is to the major or minor arm.  Here, the Veteran is right hand dominant.  Under DC 8515, for the major arm, a 10 percent rating is warranted for mild incomplete paralysis; a 30 percent rating is warranted for moderate incomplete paralysis; a 50 percent rating is warranted for severe incomplete paralysis; and a 70 percent rating is warranted for complete paralysis, that is the hand is inclined to the ulnar side, the index and middle fingers are more extended than normally, there is considerable atrophy of the muscles of the thenar eminence, the thumb is in the plane of the hand (ape hand), pronation is incomplete and defective, there is an absence of flexion of the index finger and feeble flexion of the middle finger, a fist cannot be made, the index and middle fingers remain extended, the distal phalanx of thumb cannot be flexed, there is defective opposition and abduction of the thumb at right angles to palm, flexion of wrist is weakened, and there is pain with trophic disturbances.

For the minor arm, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for severe incomplete paralysis; and a 60 percent rating is warranted for complete paralysis, that is the hand is inclined to the ulnar side, the index and middle fingers are more extended than normally, there is considerable atrophy of the muscles of the thenar eminence, the thumb is in the plane of the hand (ape hand), pronation is incomplete and defective, there is an absence of flexion of the index finger and feeble flexion of the middle finger, a fist cannot be made, the index and middle fingers remain extended, the distal phalanx of thumb cannot be flexed, there is defective opposition and abduction of the thumb at right angles to palm, flexion of wrist is weakened, and there is pain with trophic disturbances.  38 C.F.R. § 4.124a, DC 8515.     

Although the regulations do not specifically define the terms "mild," "moderate," and "severe," the regulations do provide useful guidance for comparative analysis.  The term "incomplete paralysis" refers to a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.  Further, ratings of neurological disorders are based on the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Further considerations are given to manifestations such as loss of reflexes, muscle atrophy, trophic and other organic changes, as compared to purely sensory disturbances, to include pain.  See 38 C.F.R. §§ 4.123, 4.124.

In Chavis v. McDonough, the Court held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations.  Chavis v. McDonough, 34 Vet. App. 1 (2021).  The Court stated that "Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (
 sensory disturbance.  38 C.F.R. § 4.120.  Further considerations are given to manifestations such as loss of reflexes, muscle atrophy, trophic and other organic changes, as compared to purely sensory disturbances, to include pain.  See 38 C.F.R. §§ 4.123, 4.124.

In Chavis v. McDonough, the Court held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations.  Chavis v. McDonough, 34 Vet. App. 1 (2021).  The Court stated that "Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (citing Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018).

"Mild" is generally defined as "not being or involving what is extreme" or "not severe."  "Moderate" is generally defined as "tending toward the mean or average amount."  "Severe" is generally defined as "of a great degree" or "serious."  See Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003) at 1140.

For evaluating neurological conditions, "mild" is taken to correspond to slight symptoms sufficient to support the diagnosis of incomplete paralysis, generally characterized by less persistent sensory deficits, or those affecting a small area, and or very minimal reflex or motor abnormalities.

"Moderate" is taken to correspond to the maximum evaluation available for sensory-only impairment, characterized by symptoms described by the Veteran and considered significantly disabling medically, and/or involving a larger area in nerve distribution.  Additionally, moderate can correspond to combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes with or without sensory impairment, graded as medically moderate.

"Severe" is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability.  Trophic changes may be seen in severe longstanding neuropathy cases.  Muscle atrophy is also expected.  Although severe incomplete paralysis cases should show findings substantially less than those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve.  Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve.

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14.  

The Board recognizes the holding in Banschbach v. McDonough, 37 Vet. App. 422 (2024), where the Court found that 38 C.F.R. § 4.124a does not necessarily prohibit the assignment of separate compensable ratings for paralysis, neuritis, and neuralgia.  However, in the present appeal, assigning separate ratings for neuritis or neuralgia in addition to the Veteran's current ratings for paralysis would constitute prohibited pyramiding.  38 C.F.R. § 4.14.  The Veteran's record does not show findings for either neuritis or neuralgia, and therefore, further consideration of separate ratings under either DC 8615 concerning neuritis or under DC 8715 regarding neuralgia is not required.

As noted above, the Veteran's VA treatment records show results from an August 2016 EMG-NCS indicating moderate carpal tunnel syndrome.  His treatment records contain complaints in relation to his bilateral carpal tunnel syndrome of numbness, tingling, and pain in the hands.

The Veteran was provided with a VA examination in October 2020, at which he was noted to have a diagnosis for bilateral carpal tunnel syndrome.  The Veteran described current symptoms of decreased hand grip, pain, swelling, decreased sensations in bilateral hands, and numbness/tingling in bilateral hands.  He was noted to be right hand dominant.  The examiner indicated the Veteran to have bilateral moderate constant pain, bilateral moderate paresthesias and/or dysesthesias, and bilateral moderate numbness.  The Veteran's strength was normal bilaterally for elbow
 moderate carpal tunnel syndrome.  His treatment records contain complaints in relation to his bilateral carpal tunnel syndrome of numbness, tingling, and pain in the hands.

The Veteran was provided with a VA examination in October 2020, at which he was noted to have a diagnosis for bilateral carpal tunnel syndrome.  The Veteran described current symptoms of decreased hand grip, pain, swelling, decreased sensations in bilateral hands, and numbness/tingling in bilateral hands.  He was noted to be right hand dominant.  The examiner indicated the Veteran to have bilateral moderate constant pain, bilateral moderate paresthesias and/or dysesthesias, and bilateral moderate numbness.  The Veteran's strength was normal bilaterally for elbow flexion, elbow extension, wrist flexion, wrist extension, and pinch (thumb to index finger).  However, his grip strength was indicated to be 4/5 for active movement against some resistance.  His reflexes were normal bilaterally at the biceps, triceps, and brachioradialis.   Sensations to touch were normal bilaterally at the shoulder area and at the inner/outer forearm but were decreased bilaterally at the hand/fingers.  The Veteran did not have muscle atrophy or any other trophic changes.  The examiner indicated that there were no other signs or symptoms related to the Veteran's bilateral upper extremity carpal tunnel syndrome.  The Veteran did not report the utilization of any assistive devices for his bilateral carpal tunnel syndrome.  EMG studies from August 2016 were noted to show bilateral carpal tunnel syndrome.  The examiner found the Veteran to have moderate incomplete paralysis of the median nerve with both the right and left upper extremity.

Based upon the foregoing evidence, a 30 percent rating, but no greater, for right upper extremity carpal tunnel syndrome is warranted, and a 20 percent rating, but no greater, for left upper extremity carpal tunnel syndrome is warranted.  The Veteran's August 2016 EMG-NCS showed moderate bilateral carpal tunnel syndrome.  The October 2020 VA examination showed bilateral moderate constant pain, bilateral moderate paresthesias and/or dysesthesias, and bilateral moderate numbness.  His strength was normal, although his grip strength was 4/5 bilaterally.  His reflexes were normal bilaterally.  His sensations were normal except at the hands/fingers they were decreased.  He did not have muscle atrophy or trophic changes.  The examiner indicated the Veteran to have bilateral moderate incomplete paralysis of the median nerve.

Here, the evidence reflects predominantly sensory changes.  The Veteran has reported numbness and tingling with difficulty with his grip and holding onto things, which is evidenced by his grip strength being 4/5 bilaterally.  The Veteran's sensory changes and minimal motor changes align with moderate, as was also found by the VA examiner.  Thus, ratings that align with bilateral moderate incomplete paralysis of the median nerve are warranted.  

However, to the extent a rating greater than moderate is sought, the evidence does not show a degree of motor and/or reflex impairment at a grade reflecting a very high level of limitation or disability, such as from atrophy, weakness, or diminished or hyperactive reflexes.  There are no trophic changes or muscle atrophy, and one might expect to find trophic changes if a severity of either severe incomplete paralysis or complete paralysis was manifested.  Thus, the evidence does not show that the Veteran's bilateral upper extremity carpal tunnel syndrome manifests with a severity greater than moderate incomplete paralysis.

Accordingly, an initial rating of 30 percent, but no greater, for right upper extremity carpal tunnel syndrome is granted, and an initial rating of 20 percent, but no greater, for left upper extremity carpal tunnel syndrome is granted.      

REASONS FOR REMAND

1. Increased Rating TBI

On the Veteran's July 2020 claim he noted loss of sense of taste and loss of sense of smell, which in the October 2020 rating decision the AOJ acknowledged as symptoms associated with the Veteran's service-connected TBI.  Thus, the AOJ adjudicated an issue for an increased rating for the Veteran's TBI.  The Veteran last underwent a VA examination concerning his TBI in April 2017, however, the AOJ did not provide the Veteran with a new VA examination to determine the current severity of his TBI.  

Here, since the Veteran's claim for symptoms associated with his TBI was taken by the AOJ as a claim for an increased rating for TBI, and he had not undergone a VA examination concerning his TBI since April 2017, the AOJ should have provided him with a new VA examination to determine the current severity of his TBI.  Thus,
 symptoms associated with the Veteran's service-connected TBI.  Thus, the AOJ adjudicated an issue for an increased rating for the Veteran's TBI.  The Veteran last underwent a VA examination concerning his TBI in April 2017, however, the AOJ did not provide the Veteran with a new VA examination to determine the current severity of his TBI.  

Here, since the Veteran's claim for symptoms associated with his TBI was taken by the AOJ as a claim for an increased rating for TBI, and he had not undergone a VA examination concerning his TBI since April 2017, the AOJ should have provided him with a new VA examination to determine the current severity of his TBI.  Thus, remand is necessary due to a pre-decisional duty to assist error to provide the Veteran with a VA examination to determine the current severity of his TBI.

2. TDIU

The Veteran has claimed a TDIU due to his service-connected disabilities.  A TDIU due to service-connected disabilities is inextricably intertwined with the issue of an increased rating for TBI being remanded, as well as with the ratings that will be assigned by the AOJ for the grants of service connection provided in this decision.  As such, a TDIU is remanded.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the severity of his service-connected TBI.

 

 

Ann K. Minami

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Lutgens-Staley, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.