SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

J.W. ZISSIMOS · 2026 · Case ID: A26040051

MIXED

Summary

The veteran, who served from February 2001 to January 2006, appeals decisions related to obstructive sleep apnea, erectile dysfunction, dependency and indemnity compensation (DIC), xerostomia, PTSD, right knee disorders, and foot disorders. The Board granted service connection for obstructive sleep apnea as secondary to PTSD, noting a favorable finding from a prior Board decision that linked the two conditions. The appeal for erectile dysfunction was dismissed as moot because service connection had already been granted by the agency of original jurisdiction (AOJ) with an earlier effective date. DIC benefits were denied as the veteran did not meet the durational requirements for total disability ratings. Xerostomia was denied a compensable evaluation as the evidence did not show disfigurement or impairment of mastication, and digestion issues were not supported by medical records. The Board granted an earlier effective date of April 1, 2021, for the 100 percent rating for PTSD, finding it factually ascertainable that the veteran experienced total occupational and social impairment due to homicidal and suicidal ideation around that time. Claims for earlier effective dates for right knee disorders and foot disorders were denied, as the veteran's continuous pursuit of these claims was not established prior to January 25, 2022. The Board remanded the foot disorder claim for a new medical opinion to assess severity and manifestations, specifically addressing medication effects and potential impairment, and to correct a duty to assist error regarding the evaluation of beneficial medication effects. The remand also includes reviewing the effective date for SMC housebound eligibility, as it is intertwined with the sleep apnea grant.

Rationale

AOJ implemented grant of service connection effective January 25, 2022.; Board made favorable finding that sleep apnea is related to PTSD.; Favorable findings are binding on the Board.

Special Benefit

SMC - HOUSEBOUND; DIC / CAUSE OF DEATH

Docket No.

240807-463128

Full Decision Text

Citation Nr: A26040051
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 240807-463128
DATE: April 29, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea as secondary to post-traumatic stress disorder (PTSD) on a substitution basis is granted.

The appeal for the issue of entitlement to service connection for erectile dysfunction on a substitution basis is dismissed.

Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied.

Entitlement to a compensable evaluation for xerostomia on a substitution basis is denied.

Entitlement to an effective date of April 12, 2021, for the assignment of a 100 percent for posttraumatic stress disorder (PTSD) with alcohol use disorder and insomnia disorder on a substitution basis is granted.

Entitlement to an effective date earlier than January 25, 2022, for the award of service connection for a right knee patella alta syndrome with excessive lateral patellar pressure syndrome based on lateral instability or recurrent subluxation on a substitution basis is denied.

Entitlement to an effective date earlier than January 25, 2022, for the award of service connection for a right knee patella alta syndrome with excessive lateral patellar pressure syndrome and painful motion on a substitution basis is denied.

Entitlement to an effective date earlier than January 25, 2022, for the award of service connection for left foot pes planus/forefoot valgus and bilateral plantar fasciitis (hereinafter referred to as foot disorders) on a substitution basis is denied.

REMANDED

Entitlement to an initial evaluation in excess of 20 percent for left foot pes planus/forefoot valgus /bilateral plantar fasciitis on a substitution basis is remanded.

Entitlement to an effective date earlier than June 22, 2021, for the grant of special monthly compensation (SMC) at the housebound rate on a substitution basis is remanded.

FINDINGS OF FACT

1. In January 2026, the Board granted service connection for obstructive sleep apnea, which the agency of original jurisdiction (AOJ) implemented in a rating decision later that month. In that decision, the Board made a favorable finding that the Veteran's obstructive sleep apnea is related to his service-connected PTSD.

2. As the Veteran has been granted service connection for erectile dysfunction since the date of the initial claim, there is no remaining case or controversy with respect to this appeal.

3. The Veteran was not a former prisoner of war (POW), and he was not in receipt of a 100 percent disability rating for five or more years immediately following discharge or for ten or more years preceding his death.

4. The Veteran's xerostomia was not productive of disfigurement or impairment of function of mastication.

5. Following a final May 2014 rating decision, the Veteran first submitted an intent to file (ITF) a claim for compensation benefits on June 22, 2021, and then submitted a complete application for an increased evaluation for PTSD within one year thereafter. He continuously pursued that claim.

6. It was factually ascertainable that an increase in the Veteran's PTSD had occurred as of April 12, 2021.

7. In a final October 2006 rating decision, the AOJ denied a claim for service connection for a right knee disorder.

8. Following the final October 2006 rating decision, the Veteran first submitted a complete claim for service connection for a right knee disorder using the proper form in February 2022, which was within one year of an intent to file (ITF) a claim for compensation benefits received on January 25, 2022.

9. In a February 2020 rating decision, the AOJ denied a claim for service connection for foot disorders. The Veteran did not submit a supplemental claim, a request for higher-level review, or an appeal to the Board within one year of the decision to maintain continuous pursuit.

10. Following the February 2020 rating decision, the Veteran first submitted a complete claim for a foot disorder disorder using the proper form in February 2022, which was within one year of an ITF received on January 25, 2022.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5104, 5107; 38 C.F.R. §§ 3.102, 3.104, 3.303, 3.310.

2. The appeal for the issue of entitlement
appeal to the Board within one year of the decision to maintain continuous pursuit.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5104, 5107; 38 C.F.R. §§ 3.102, 3.104, 3.303, 3.310.

2. The appeal for the issue of entitlement to service connection for erectile dysfunction is dismissed as moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for entitlement to DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318, 5107; 38 C.F.R. § 3.102, 3.22.

4. The criteria for a compensable evaluation for xerostomia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.114, Diagnostic Codes 7299-7200.

5. The criteria for an effective date of April 12, 2021, but no earlier, for the assignment of a 100 percent evaluation for PTSD have been met. 38 U.S.C. §§ 5105, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400, 3.2500, 4.130, Diagnostic Code 9411.

6. The criteria for an effective date prior to January 25, 2022, for the grant of service connection for a right knee patella alta syndrome with excessive lateral patellar pressure syndrome based on lateral instability or recurrent subluxation have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400.

7. The criteria for an effective date prior to January 25, 2022, for the grant of service connection for a right knee patella alta syndrome with excessive lateral patellar pressure and painful motion have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400.

8. The criteria for an effective date prior to January 25, 2022, for the grant of service connection for a foot disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2001 to January 2006. He died in November 2022, and the appellant is his surviving child. In August 2023, the AOJ recognized the child as a substitute claimant in this case.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2023 rating decision, which was a higher level review of May 2022, June 2022, and July 2022 rating decisions, as well as a July 2024 rating decision.

The appellant submitted a VA Form 10182 in August 2024 and elected the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2022, June 2022, and July 2022 rating decisions, which were subsequently subject to higher-level review, and the July 2024 rating decision. If evidence was submitted during the period after the AOJ issued the relevant decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

The Board also notes that the appellant included the issue of entitlement to an earlier effective date for the award of service connection for xerostomia in the August 2024 VA Form 10182 and identified the August 2023 rating decision as the determination being appealed. However, the
the time of the May 2022, June 2022, and July 2022 rating decisions, which were subsequently subject to higher-level review, and the July 2024 rating decision. If evidence was submitted during the period after the AOJ issued the relevant decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

The Board also notes that the appellant included the issue of entitlement to an earlier effective date for the award of service connection for xerostomia in the August 2024 VA Form 10182 and identified the August 2023 rating decision as the determination being appealed. However, the AOJ did not adjudicate that issue in a decision in the year preceding the filing of the August 2024 VA Form 10182. The appellant also did not request an extension of time to file the VA Form 10182 or provide good cause for the untimely filing as to the earlier effective date issue. Therefore, the notice of disagreement was untimely for that issue, and the claim is not currently on appeal. 38 C.F.R. §§ 3.2500(a), 20.203.

Law and Analysis

The appellant and his representative have not raised any issues with the pre-decisional duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, air or space service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.310(a); Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (Fed. Cir. 2023) (holding that, under the causation standard of 38 U.S.C. § 1110, secondary service connection is warranted where a nonservice-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability). The Federal Circuit has held that 38 C.F.R. § 3.310(b) is inconsistent with 38 U.S.C. § 1110. Id.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

Sleep Apnea

During the pendency of the appeal, the AOJ implemented a grant of service connection for obstructive sleep apnea effective from January 25, 2022. See January 2026 Board decision; January 2026 rating decision.

Although service connection has been granted, it is unclear as to whether a grant of this appeal could potentially result in an earlier effective date. See, e.g., Concepcion-Maldonado v. Collins, 38 Vet. App. 294 (2025); Johnson v. Collins, 38 Vet. App. 151 (2025).

In the January 2026 decision, the Board made a favorable finding
when evidence persuasively favors one side or the other).

Sleep Apnea

In the January 2026 decision, the Board made a favorable finding that the Veteran's sleep apnea is related to his service-connected PTSD. The Board notes that it may not consider any additional evidence on which that decision was based. However, the favorable findings are binding on the Board. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Therefore, the Board finds that service connection is warranted for obstructive sleep apnea.

The AOJ will have an opportunity to determine the appropriate effective date in implementing this decision. See Warren v. McDonald, 28 Vet. App. 214, 221 (2016); Bailey v. Wilkie, 33 Vet. App. 188, 203-04 (2021).

Erectile Dysfunction

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105.

During the pendency of the appeal, in an August 2024 rating decision, the AOJ granted entitlement to service connection for erectile dysfunction. The appellant appealed that decision, and in a January 2026 decision, the Board granted an earlier effective date of January 25, 2022, for the award of service connection for erectile dysfunction. As explained in that decision, there was no claim filed prior to that date for that issue. Thus, the Veteran was granted service connection for erectile dysfunction effective from that date of his initial claim. Therefore, the Board finds that there is no remaining case or controversy. Accordingly, the appeal is dismissed as moot. 38 U.S.C. § 7105.

DIC

VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former prisoner of war (POW) and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c).

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the appellant is not entitled to DIC under U.S.C. § 1318.

The Veteran did not meet the durational requirement for a total disability rating in existence during his lifetime under 38 U.S.C. § 1318. He was discharged from active service in January 2006, and he died in November 2022. See DD 214; November 2022 death certificate. With consideration of an earlier effective date granted herein, the Veteran would have been in receipt of a total disability rating for posttraumatic stress disorder (PTSD) for approximately one and a half years. Thus, the Veteran was not rated as totally disabled for a period of at least 5 years from the date of his discharge from active duty, or for at least 10 years preceding his death. There is also no indication that he was a POW, and the appellant has not claimed that there was clear and unmistakable error (CUE) in any prior rating decision. See Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994); Luallen v. Brown, 8 Vet. App. 92, 94
disorder (PTSD) for approximately one and a half years. Thus, the Veteran was not rated as totally disabled for a period of at least 5 years from the date of his discharge from active duty, or for at least 10 years preceding his death. There is also no indication that he was a POW, and the appellant has not claimed that there was clear and unmistakable error (CUE) in any prior rating decision. See Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994); Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (any claim of CUE must be pled with specificity). Therefore, the Board concludes that the criteria of 38 U.S.C. § 1318 have not been met.

In reaching this determination, the Board notes that, in the August 2023 rating decision, the AOJ found a duty to assist error as to the separate issue of entitlement to service connection for the cause of the Veteran's death. Therefore, the August 2023 rating decision did not constitute an adjudicative determination from which a notice of disagreement may be filed. C.f. Shipley v. Shinseki, 24 Vet. App. 458 (2011) (concluding that a deferred rating decision does not constitute an appealable adjudicative action). Thus, that issue is not currently on appeal to the Board.

Increased Evaluation

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27.

The Veteran's xerostomia (dry mouth
. at 126-27.

The Veteran's xerostomia (dry mouth) was assigned a noncompensable evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7299-7200. Hyphenated diagnostic codes including a diagnostic code ending in the digits "99" are used when there is no specifically applicable diagnostic code, and the disability is rated by analogy; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

Diagnostic Code 7200 indicates that soft tissue injuries of the mouth should be rated as disfigurement and impairment of function of mastication.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that an increased evaluation for xerostomia was not warranted.

During an August 2021 VA examination, the Veteran reported that he had a dry mouth due to medication he was taking. The examiner diagnosed him with xerostomia; however, no pertinent physical findings, scars, complications, conditions, signs, and/or symptoms were noted.

During a February 2022 VA examination, the Veteran reported that his xerostomia was resulting in the erosion of the enamel of his teeth and difficulty in digesting his food. The examiner noted the presence of wear facets and erosion of the enamel of the teeth.

Upon review, the Board finds that there is no evidence showing that the Veteran had disfigurement and impairment of function of mastication. Indeed, neither VA examiner found such manifestations. The Board also notes that the rating criteria does not provide a compensable evaluation for erosion of tooth enamel. 38 C.F.R. § 4.150; see also 38 C.F.R. §§ 3.381; 4.150.

The Board has also considered the Veteran's statements that his dry mouth caused difficulty in digesting his food. However, the medical evidence of record does not support such an assertion. Although a November 2019 treatment record had documented diarrhea, there is no evidence documenting digestion issues. Moreover, it is unclear how dry mouth would impact digestion itself, particularly given that there is no evidence of masticatory issues.

Based on the foregoing, the Board finds that the criteria for an increased evaluation for xerostomia have not been met. Accordingly, the appeal is denied.

Earlier Effective Dates

Unless specifically provided otherwise, the effective date of an award based on an initial claim, a supplemental claim, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) ("increase" for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Thus,
(b); 38 C.F.R. § 3.400(o); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) ("increase" for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Thus, three possible dates may be assigned depending on the facts of a case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1);

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)).

For continuously pursued claims, except as otherwise provided, 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 administrative review options as specified in 38 C.F.R. § 3.2500(c), generally within one year of the issuance of the decision. Except as otherwise provided, 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 it will not be earlier than the date of receipt of the supplemental claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.2500(h).

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).

An initial claim is any complete claim, other than a supplemental claim, for a benefit on a form prescribed by VA. The first initial claim for one or more benefits received by VA is further defined as an original claim (see 38 C.F.R. § 3.160(b)). Initial claims include a new claim requesting service connection for a disability or grant of a new benefit and a claim for increase in a disability evaluation rating or rate of a benefit paid based on a change or worsening in condition or circumstance since the last decision issued by VA for the benefit. A supplemental claim is any complete claim for a VA benefit on an application form prescribed by VA where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided. 38 C.F.R. § 3.1(p); see also 38 C.F.R. § 3.2501 (supplemental claims). A pending claim is a claim which has not been finally adjudicated. A claim adjudicated by VA as either allowed or disallowed is considered finally adjudicated under the modernized review system when the period in which to file a review option available under 38 C.F.R. § 3.2500 expires or with disposition on judicial review where no such review option is available. 38 C.F.R. § 3.160(c)-(d).

A supplemental claim is any complete claim for a VA benefit on an application form prescribed by VA where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided. 38 C.F.R. § 3.1(p)(2); see also 38 C.F.R. §§ 3.160(a) (complete claim) and 3.2501.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21
the same or similar benefit on the same or similar basis was previously decided. 38 C.F.R. § 3.1(p)(2); see also 38 C.F.R. §§ 3.160(a) (complete claim) and 3.2501.

PTSD

In considering the evidence of record under the laws and regulations as set forth above, the Board finds an earlier effective date is warranted for the assignment of a 100 percent evaluation for the Veteran's service-connected PTSD.

In a May 2014 rating decision, the AOJ granted service connection for PTSD and assigned a 70 percent evaluation effective from February 10, 2012. The Veteran was notified of that decision and of his appellate rights, but he did not file an appeal or submit new and material evidence within one year of that decision. Therefore, the May 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2014).

Following the May 2014 rating decision, the Veteran first submitted an intent to file a claim (ITF) on June 22, 2021, which followed by a VA Form 21-526EZ later month that included a claim for an increased evaluation for PTSD. The AOJ denied that claim in a December 2021 rating decision, and the Veteran then submitted a supplemental claim (VA Form 20-0995) in January 2022. In a May 2022 rating decision, the AOJ increased the evaluation for PTSD to 100 percent effective from March 10, 2022.

The appellant subsequently filed a request for higher-level review in April 2023, in part, seeking an earlier effective date for the assignment of the 100 percent evaluation. In the August 2023 rating decision currently on appeal, the AOJ granted an earlier effective date of June 22, 2021.

Based on the foregoing, the Board finds that there has been continuous pursuit of the claim originally stemming from the June 22, 2021, ITF. Thus, the Board must determine whether it was factually ascertainable that the Veteran met the criteria for an increased evaluation in the one-year period preceding that claim.

In this case, the Veteran's PTSD has been assigned a 100 percent evaluation, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that diagnostic code, a 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.

In April 2019, VA treatment records indicated that the Veteran had stopped drinking alcohol and that his symptoms were improving. He was documented as being in a good mood with no suicidal ideation or homicidal ideation. However, medical records show that the Veteran was later admitted to a hospital on April 12, 2021, following a domestic incident with homicidal ideation, suicidal ideation, and symptoms of PTSD, depression, and alcohol abuse.

Medical records dated in June 2021 also indicate that the Veteran attempted suicide in May 2021 and was experiencing suicidal ideation approximately twice per week. Medical records from around that time period further note that the Veteran's alcohol abuse was escalating.

Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that it is factually ascertainable that his service-connected PTSD resulted in total occupational and social impairment within the one-year period prior to the filing of his June 2021 TDIU claim. Specifically, the Board finds that it was factually ascertainable that the Veteran was a persistent threat to himself and others as of April 1, 2021, as he was hospitalized for homicidal and suicidal ideation on that date.
2021 also indicate that the Veteran attempted suicide in May 2021 and was experiencing suicidal ideation approximately twice per week. Medical records from around that time period further note that the Veteran's alcohol abuse was escalating.

Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that it is factually ascertainable that his service-connected PTSD resulted in total occupational and social impairment within the one-year period prior to the filing of his June 2021 TDIU claim. Specifically, the Board finds that it was factually ascertainable that the Veteran was a persistent threat to himself and others as of April 1, 2021, as he was hospitalized for homicidal and suicidal ideation on that date. Accordingly, the Board concludes that an earlier effective date of April 1, 2021, is warranted.

Right Knee Disorders

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an effective date prior to January 25, 2022, for the grant of service connection for his right knee disabilities.

The AOJ had previously considered and denied a claim for service connection for a right knee disorder in an October 2006 rating decision. The Veteran was notified of that decision and of his appellate rights, but he did not file an appeal or submit new and material evidence within one year of that decision. Therefore, the October 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. See also Sears v. Principi, 16 Vet. App. 244, 248 (2002).

Thereafter, the Veteran first submitted an intent to file (ITF) on June 22, 2021, and a VA Form 21-526EZ on June 23, 2021. However, the AOJ sent a letter to the Veteran on June 25, 2021, informing him that he must use the proper form because the claim was previously denied and included instructions. He later filed another ITF on January 25, 2022, and a supplemental claim (VA Form 20-0995) on February 25, 2022.

The Board notes that there were other claims included in the June 2021 VA Form 21-526EZ that attached to the June 2021 ITF. When VA receives an intent to file followed by a complete claim and later another intent to file for the same benefit is submitted within one year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided it is received within one year of the subsequent intent to file. 38 C.F.R. § 3.155(b). Thus, the Board finds that the earliest claim date would have been the January 25, 2022, ITF, which was followed by a complete claim within one year thereafter.

Regarding the date of entitlement, even assuming the evidence shows that the Veteran met the requirements for service connection prior to January 25, 2022, the effective date for an award based on a claim reopened after final adjudication cannot be earlier than the date of VA's receipt of the new claim, as outlined above. The date of receipt of the new claim is the effective date currently assigned in this case. Accordingly, the appeal is denied.

Foot Disorders

The AOJ previously considered and denied a claim for foot disorders in a February 2020 rating decision. The Veteran did not submit a supplemental claim, a request for higher-level review, or an appeal to the Board within one year of the decision to maintain continuous pursuit.

Thereafter, the Veteran first submitted an ITF on June 22, 2021, and a VA Form 21-526EZ on June 23, 2021. However, the AOJ sent a letter to the Veteran in December 2021, informing him that he must use the proper form because the claim was previously denied and included instructions. He later filed another ITF on January 25, 2022, and a supplemental claim (VA Form 20-0995) on February 25, 2022.

As previously discussed, there were other claims included in the June 2021 VA Form 21-526EZ that attached to the June 2021 ITF. When VA receives an intent to file
Veteran first submitted an ITF on June 22, 2021, and a VA Form 21-526EZ on June 23, 2021. However, the AOJ sent a letter to the Veteran in December 2021, informing him that he must use the proper form because the claim was previously denied and included instructions. He later filed another ITF on January 25, 2022, and a supplemental claim (VA Form 20-0995) on February 25, 2022.

As previously discussed, there were other claims included in the June 2021 VA Form 21-526EZ that attached to the June 2021 ITF. When VA receives an intent to file followed by a complete claim and later another intent to file for the same benefit is submitted within one year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided it is received within one year of the subsequent intent to file. 38 C.F.R. § 3.155(b). Thus, the Board finds that the earliest claim date would have been the January 25, 2022, ITF, which was followed by a complete claim within one year thereafter.

Regarding the date of entitlement, even assuming the evidence shows that the Veteran met the requirements for service connection prior to January 25, 2022, the effective date for an award cannot be earlier than the date of VA's receipt of the new claim, as outlined above. The date of receipt of the new claim is the effective date currently assigned in this case. Accordingly, the appeal is denied.

In light of the above, June 22, 2021, is the earliest possible effective date for SMC housebound eligibility, and the appeal for an earlier effective date is denied.

REASONS FOR REMAND

Upon review, the Board finds that a remand is needed to correct a pre-decisional duty to assist error.

The Board notes that May 2022 and July 2022 VA examiners indicated that the Veteran's foot disabilities were being treated with medications. In Ingram v. Collins, 38 Vet. App. 130 (2025), the United States Court of Veterans Appeals for Veterans Claims (Court) held that the beneficial medication effects must be discounted and that the baseline severity of the disability must be evaluated when rating disabilities that do not reference medication use. However, the examiners did not address the beneficial effects of any medications. Therefore, the Board finds that an additional medical opinion was needed.

Moreover, because the AOJ's effectuation of the Board's grant of service connection for sleep apnea herein could affect the outcome of the earlier effective date claim for SMC at the housebound rate as statutorily authorized under 38 U.S.C. § 1114(s)(1), the claims are inextricably intertwined.

The matter is REMANDED for the following action:

1. The AOJ should obtain a retrospective medical opinion to ascertain the severity and manifestations of the Veteran's service-connected foot disabilities.

The examiner is requested to review all pertinent records associated with the claims file.

The examiner should note that the Veteran was competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should address the beneficial effects of any medication that the Veteran used for his service-connected foot disabilities. He or she should discuss whether it possible to discount any beneficial effects of the medications on the findings needed to evaluate the disability under the rating criteria, including any effect on his symptoms and resulting impairment.

If the examiner cannot provide the request findings without resorting to speculation, he or she should state whether all procurable lay and medical evidence has been considered; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided.

A clear rationale for all opinions should be provided.

2. In connection with effectuating the grant of service connection for sleep apnea in this decision, the AOJ should review the issue of entitlement to an earlier effective date for the grant of SMC on appeal given the resulting expanded appeal period.

J.W. ZISSIMOS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rideout-Davidson, B.

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.

for all opinions should be provided.

J.W. ZISSIMOS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rideout-Davidson, B.

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